Phillips v. Generations Family Health Center
Filing
36
ORDER granting 12 Motion to Dismiss for Lack of Jurisdiction without leave to file an administrative claim. See attached memorandum of decision. The Clerk is directed to close the case. Signed by Judge Vanessa L. Bryant on 8/17/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHRISTOPHER PHILLIPS,
Administrator for the
ESTATE OF KAREN CATO
PLAINTIFF,
v.
GENERATIONS FAMILY HEALTH
CENTER,
DEFENDANT
:
:
:
:
: CIVIL ACTION NO. 3:11cv1752 (VLB)
:
: AUGUST 17, 2012
:
:
:
:
MEMORANDUM OF DECISION GRANTING DEFENDANT’S [DKT. #12] MOTION TO
DISMISS PLAINTIFF’S COMPLAINT
The Defendant, Generations Family Health Center (“Generations”), moves
pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss the complaint filed by Plaintiff,
Christopher Phillips, M.D. (“Dr. Phillips”) as administrator for the estate of Karen
Cato on the basis that Plaintiff failed to exhaust administrative remedies under
the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (“FTCA”). Plaintiff brings
this action against Generations alleging medical malpractice in connection with
the treatment of the decedent Karen Cato. Plaintiff concedes that he failed to file
the required administrative claim but argues that this Court should dismiss this
action without prejudice to leave to file the claim on the basis of the “savings
clause” of the FTCA or the application of equitable tolling. For the foregoing
reasons, the Court finds that Plaintiff is not entitled to equitable tolling and that
the saving clause is not applicable to the instant case. The Court therefore
1
GRANTS Defendant’s motion to dismiss without leave to file an administrative
claim.
Procedural Background
On March 31, 2011, Plaintiff petitioned the Connecticut Superior Court
pursuant to Conn. Gen. Stat. §52-190a(b) for an extension of the statute of
limitations for “90 days to allow reasonable inquiry into the grounds for pursuing
a legal action against one of more of the following: Uzma Zaidi, MD, John Bodin,
MD, Generations Health Center, Inc. and/or its agents, servants or employees…”
[Dkt. #22, Ex. A]. The Petition indicated that the “Statute of Limitations has not
yet run; the acts or omissions, which may give rise to a claim(s) occurred on or
about April 6, 2009. Any action or actions that may be brought by Christopher
Phillips, MD, Administrator of the Estate of Karen Cato will be filed in this Court.”
Id. The Connecticut Superior Court granted the extension that same day. Id.
On June 30, 2011, the Plaintiff filed a complaint against Generations in
Connecticut Superior Court. See [Dkt. #1]. The United States Attorney’s Office
removed the Superior Court action to this Court on the grounds that the
treatment provided by Generations fell within the purview of the FTCA pursuant
to the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n).
Id. The basis for removal is that during the relevant time period, Generations was
deemed by the Department of Health and Human Services (“HHS”) to be a Public
Health Service facility whose employees are entitled to malpractice coverage
under the FTCA. On this basis, the claims against Generations are really claims
2
against the United States of America and therefore Plaintiff’s state law tort claims
are subject to the FTCA.
Factual Background
The following facts are based on the Plaintiff’s complaint and
memorandum in opposition to Defendant’s motion to dismiss. Ms. Karen Cato
(the “Decedent”) was treated at Generations in Norwich, CT by Dr. Uzma Zaidi, Dr.
Jyothirmayee Korivi, and APRN Tara Menichetti on several occasions from
October 1999 through January 2009. [Dkt #1, Complaint, ¶¶ 1-11]. Plaintiff
alleges that Defendant failed to timely diagnose and treat the Decedents’ colon
cancer. Plaintiff further alleges that Defendant failed to order or prescribe a
“screening colonoscopy for this patient in light of the patient’s age, close family
history of colon cancer, history of irritable bowel syndrome, blood in the stool
and internal hemorrhoids, at office visits from September 17, 2007 until December
11, 2008.” Id. at ¶12. Plaintiff alleges that Defendant failed to screen for blood in
the stool and conduct a simple rectal exam at office visits from September 17,
2007 until December 11, 2008. Id. The Decedent passed away on April 6, 2009 of
advanced colon cancer.
In January of 2009, prior to her death, Decedent consulted with Gerhardt M.
Nielsen a lawyer with the law firm of Pegalis & Erikson, LLC (“Pegalis”) regarding
her diagnosis of advanced colon cancer. [Dkt #22, Ex. C ¶¶ 3-4]. Attorney
Nielsen indicated that he told the Decedent that “only after a review of her
medical records by an expert would it be possible to advise if there was any
3
reason to suspect that a physician did anything harmful to her” and that “in
cases involving young people like her, it was very unlikely that any negligence of
a doctor would have contributed to her injury because, in general, the standard of
car for patient in her age did not require routine colon cancer screening.” Id. at
¶5. Attorney Nielsen sent a medical records request to Generations within a week
of meeting with the Decedent in January of 2009 and told the Decedent that once
the records were received he would have them reviewed by a medical expert. Id.
at ¶6.
Shortly following Decedent’s death, the Plaintiff, Decedent’s brother Dr.
Christopher Phillips M.D., called Attorney Nielsen and informed him of her death.
Dr. Phillips also indicated in this communication that the Decedent’s son, Zane
Deshong, would be in touch with Attorney Nielsen. Id. at ¶7. Dr. Phillips attests,
in an affidavit, that he knew that the Decedent had spoken with lawyers at Pegalis
prior to her death. [Dkt. #22, Ex. B., ¶5]. Although the parties do not give the
exact date that Dr. Phillips contacted Attorney Nielsen it is clear this
communication occurred by April 27, 2009 as Attorney Nielsen attests that he was
unable to review the medical records he received on April 27, 2009 as he “had no
authority from any source to look at them as they were protected medical
records.” [Dkt. #22, Ex. C, ¶9]. The Court therefore assumes that April 27, 2009 is
the date on which Dr. Phillips communicated to Attorney Nielsen regarding the
Decedent’s death.
On July 6, 2009, Attorney Nielsen received the promised phone call from
Decedent’s son, Mr. Deshong. Mr. Deshong informed Attorney Nielsen that he
4
was “in the United States Navy on submarine duty in the Pacific, and he
specifically cautioned [Attorney Nielsen] that he would be very hard to contact
because he would be on tour for months at a time.” Id. Attorney Nielsen told Mr.
Deshong that his law firm Pegalis did not have all of Decedent’s medical records
and had not reviewed what records they had received because they did not
represent Mr. Deshong or his mother’s estate. Id. at ¶10. Attorney Neilson
encouraged Mr. Deshong to have someone appointed as administrator of his
mother’s estate so that someone could authorize Pegalis to investigate. Id. Mr.
Deshong indicated that he did not object to Pegalis reviewing what records they
had received. Id. at ¶11.
Attorney Nielsen indicated that “[a]lthough, over the next eight months, we
attempted to work with [Mr. Deshong] to attend to legal details, including … the
establishment of an estate, this became impractical.” Id. at ¶13. In March of 2010,
Mr. Deshong advised Attorney Nielsen that he was sending his contact
information to his uncle Dr. Phillips and that his uncle “would take care of the
situation from that point forward” and would be in touch soon. Id. at ¶14.
In July of 2010, Attorney Nielsen was contacted by Dr. Phillips who
authorized Pegalis to review the Decedent’s medical records. Id. at ¶¶15-16.
Attorney Nielsen put Dr. Phillips in touch with the DeAngelo firm a Connecticut
law firm and advised him that DeAngelo would be working with Pegalis on this
matter. Id. at ¶17. “After July of 2010, Dr. Phillips was put in contact with Mr.
DeAngelo’s office for the purpose of having him appointed as the administrator of
his sister’s estate.” Id. at ¶19.
5
Attorney Nielsen sent the medical records they had received to Dr. Apstein,
an internist and gastroenterologist to review. Id. at ¶20. In December 2010, Dr.
Apstein indicated that he had reviewed the available medical records but that he
would prefer to review the complete record before giving his opinion. Id. at ¶1721. As of December 2010, Attorney Nielsen had not been able to request
Decedent’s medical records from Lawrence & Memorial as a result of the delay in
appointing an administrator of the Decedent’s estate. Id. On March 21, 2011, Dr.
Phillips was appointed as administrator of the Decedent’s estate by the Probate
court. Id. at ¶2.
Attorney Nielsen attests, in an affidavit, that “review of the Generations
records did not reveal anything which in any way indicated that Generations, or
any of the doctors there, were federal ‘Public Health Service Employees’ or
subject to the provisions of the Federal Tort Claims Act. Ms. Cato was not a
service patient. She had medical insurance with Aetna. She was not homeless
and was not on public assistance.” Id. at ¶25. Attorney Nielsen further attests
that the “website for Generations did not contain any information indicating that
this was a federally funded facility; nowhere on the site did it indicate that there
was any federally funding involved.” Id. at ¶26.
Legal Standard
The standards of review for a motion to dismiss under Rule 12(b)(1) for lack
of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are
“substantively identical.” Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d. Cir.
6
2003). However, on a motion to dismiss under Rule 12(b)(1), the party invoking
the Court’s jurisdiction bears the burden of proof to demonstrate that subject
matter jurisdiction exists, whereas the movant bears the burden of proof on a
motion to dismiss under Rule 12(b)(6). Id. In deciding both types of motions, the
Court “must accept all factual allegations in the complaint as true, and draw
inferences from those allegations in the light most favorable to the plaintiff.” In
re AIG Advisor Group Sec. Litig., 309 Fed. App’x. 495, 497 (2d Cir. 2009). “To
survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal
quotation marks omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
The Court’s review on a motion to dismiss pursuant to Rule 12(b)(6) is
generally limited to “the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). In addition, the Court may also
consider “matters of which judicial notice may be taken” and “documents either
in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). In
deciding a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), however, the Court “may resolve disputed factual issues by reference to
7
evidence outside the pleadings, including affidavits.” State Employees
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007).
Analysis
The FTCA requires that a claimant exhaust all administrative remedies
before filing an action in federal court. Celestine v. Mount Vernon Neighborhood
Health Ctr., 403 F. 3d 76, 82 (2d Cir. 2005). This administrative exhaustion
requirement is jurisdictional. Id. If the claimant does not exhaust his/her
administrative remedies, a federal court will not have subject matter jurisdiction
over the action. To survive a Rule 12(b)(1) motion, Plaintiff must prove by a
preponderance of the evidence that the Court has subject matter jurisdiction over
his claim. Lunney v. United States, 319 F. 3d 550, 554 (2d Cir. 2003). Here,
Defendant argues that this Court lacks subject matter jurisdiction over Plaintiff’s
claim because Plaintiff did not file a timely administrative claim with HHS within
two years of the date that his claim accrued.
Plaintiff concedes that he failed to file an administrative claim but argues
that he should now be permitted to do so for two reasons. First Plaintiff argues
that his claim is timely as it should be subject to the savings clause in 28 U.S.C. §
2679 (d) (5) on the basis of his March 31 Superior Court Petition. Plaintiff argues
the state court action was commenced for purposes of the savings clause within
two years of the Decedent’s death when he filed the March 31, 2011 Petition
seeking an extension of the state statute of limitations. Second, Plaintiff argues
in the alternative that his medical mal-practice claim did not “accrue” for FTCA
purposes until at earliest Mid July 2009 when the Decedent’s son first contacted
8
Pegalis and when Pegalis first received the Decedent’s medical records and
therefore his claim is timely and on this basis also subject to the savings clause.
Lastly, Plaintiff argues in the alternative that he is entitled to the protection of the
doctrine of equitable tolling. The Court will examine each of Plaintiff’s argument
in turn.
i.
Savings Clause under 28 U.S.C. § 2679(d)(5) on the basis of the
March 31, 2011 Petition
Plaintiff argues that his action is timely by virtue of the so-called savings
clause of 28 U.S.C. § 2679(d)(5) which provides in relevant part that “[w]henever
an action or proceeding in which the United States is substituted as the party
defendant under this subsection is dismissed for failure to first present a claim
pursuant to section 2675(a) of this title, such claim shall be deemed to be timely
presented under section 2401(b) of this title if (A) the claim would have been
timely had it been filed on the date the underlying civil action was commenced,
and (B) 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). Plaintiff argues without
citation to any caselaw that this action “was commenced within the time allowed
for FTCA claims because the plaintiff filed the March 31 Petition to extend the
statute of limitations with the appropriate clerk of the state court less than two
years after Karen Cato’s death, effectively initiating the claims.” [Dkt. #22, p. 5-8].
In other words, Plaintiff argues that he commenced the lawsuit upon filing the
March 31 Petition to extend the state statute of limitations. Plaintiff therefore
contends that on the basis of the savings clause this Court should dismiss the
action with leave to file a claim to HHS within 60 days of dismissal.
9
Defendant argues that although Conn. Gen. Stat. § 52-190a(b) may extend
the statute limitations period under Connecticut law, it does not apply under the
FTCA because only “[f]ederal law determines the date that an FTCA claim
accrues.” A.Q.C. ex re. Castillo v. U.S., 656 F.3d 135, 139 (2d Cir. 2011).
Defendant further argues that the civil action was not commenced on the filing of
the March 31, 2011 Petition but instead untimely commenced when the complaint
was filed on June 30, 2011 which was more than two years after Plaintiff’s FTCA
claim accrued on April 6, 2009 when the Decedent passed away.
Pursuant to federal law, an action is commenced by filing a complaint with
the court. See Fed. R. Civ. P. 3. The United States Supreme Court has held that
under the Erie doctrine Federal Rule of Civil Procedure 3 “governs the date from
which various timing requirements of the Federal Rules begin to run, but does
not affect state statutes of limitations.” Walker v. Armco Steel Corp., 446 U.S.
740, 751 (1980). In the instant case, federal law governs as the FTCA’s two year
limitations period is one relating to a timing requirement under federal law and
not a state statute of limitation. Consequently, under Federal Rule of Civil
Procedure 3, the March 31 Petition did not commence the action as no complaint
was filed.
Moreover, a plain reading of Plaintiff’s March 31 Petition buttresses this
conclusion as the Petition indicates that Plaintiff was engaged in a “reasonable
inquiry into the grounds for pursuing a legal action against” various potential
defendants and states that “[a]ny action or actions that may be brought by
Christopher Phillips, MD, Administrator of the Estate of Karen Cato will be filed in
10
[Superior] Court.” [Dkt. #22, Ex. A] (emphasis added). Further, the text of Conn.
Gen. Stat. § 52-190a1 underscores that the effect of the Petition is to allow a
claimant the ability to bring an action later should he chose to do so. Conn. Gen.
Stat. § 52-190a provides that a ninety-day extension of the statute of limitations
shall be granted “upon petition to the clerk of the court where the civil action will
be filed.” Conn. Gen. Stat. § 52-190a (emphasis added). The Petition itself and
the text of Conn. Gen. Stat. § 52-190a plainly indicate that the filing of the Petition
did not commence an action against the Defendants. Indeed, under Conn. Gen.
Stat. § 52-190a if a claimant failed to file an action within the 90 day extended
period or failed to obtain and file the required written opinion, the action would be
subject to dismissal. At most, the Petition under Conn. Gen. Stat. § 52-190a
merely extended the time to commence an action as opposed to actually
commencing the action. Plaintiff’s argument that the action is timely under the
savings clause as a result of his March 31 Petition is therefore unavailing.
Consequently, Plaintiff’s claim is not subject to the savings clause on this basis.
ii.
Date of accrual of medical malpractice claim
1
Conn. Gen. Stat. § 52-190a provides that in order to file an action within the
requested ninety-day extension the “complaint, initial pleading or apportionment
complaint shall contain a certificate of the attorney or party filing the action or
apportionment complaint that such reasonable inquiry gave rise to a good faith
belief that grounds exist for an action against each named defendant or for an
apportionment complaint against each named apportionment defendant… To
show the existence of such good faith, the claimant or the claimant's attorney,
and any apportionment complainant or the apportionment complainant's
attorney, shall obtain a written and signed opinion of a similar health care
provider.” Id.
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Plaintiff argues in the alternative that his medical malpractice claim did not
“accrue” for FTCA purposes until at earliest Mid July 2009 and is therefore timely
brought and also subject to the savings clause. Plaintiff contends that the
“wrongful death claim asserted by Dr. Phillips on behalf of the Estate of Karen
Cato did not ‘accrue’ on the date of Karen’s death, but at a later time” and argues
that “the very earliest the wrongful death claim could have accrued was in Mid
July, 2009, when the decedent’s son, Zane Deshong, was first in contact with
counsel and when records concerning her cancer were first received.” [Dkt. #22,
p. 9]. Defendant argues that the claim accrued by April 6, 2011 the date the
Decedent passed away as it is clear that by that date the Decedent’s family held
enough information to protect themselves by seeking legal advice by virtue of the
fact that the Decedent had already consulted with Pegalis regarding a potential
medical malpractice claim shortly before her death.
“Federal law determines the date that an FTCA claim accrues.” A.Q.C., 656
F.3d at 139. “Typically, FTCA medical malpractice claims accrue ‘at the time of
injury.’” Id. (quoting Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)).
“However, where a plaintiff would reasonably have had difficulty discerning the
fact or cause of injury at the time it was inflicted, the so-called ‘diligencediscovery rule of accrual applies. The diligence-discovery rule sets the accrual
date at the time when, “with reasonable diligence,” the plaintiff “has or ... should
have discovered the critical facts of both his injury and its cause” Id. (internal
quotation marks and citation omitted). The Second Circuit has indicated that this
“is not an exacting requirement, but requires only knowledge of, or knowledge
12
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....
[A] plaintiff need not know each and every relevant fact of his injury or even that
the injury implicates a cognizable legal claim. 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
(citation omitted).
The Second Circuit has explained that once an injured party or the injured
party’s guardian “knows enough to warrant consultation with counsel, and acts
with diligence to undertakes such consultation, conscientious counsel will have
ample time to protect the client's interest by investigating the case and
determining whether, when, where, and against whom to bring suit. The diligentdiscovery rule protects plaintiffs who are either experiencing the latent effects of
a previously unknown injury or struggling to uncover the underlying cause of
their injuries from having their claims time-barred before they could reasonably
be expected to bring suit; at the same time, the rule avoids unduly extending the
limitations period for those who could have timely presented their claim to DHHS
had they acted diligently in protecting their interests.” A.Q.C., 656 F.3d at 140.
Here the “critical facts” of the Decedent’s injury were readily discernable at
the latest by April 27, 20092 the date at which the Plaintiff, Dr. Phillips, contacted
2
As discussed above, although the parties do not provide the actual date of the
communication between Dr. Phillips and Attorney Nielsen, the Court assumes it
occurred by April 27, 2009 based on Attorney Nielsen’s statement in his affidavit
that he could not review medical records received on April 27, 2009 in light of the
13
Attorney Nielsen to inform him of the Decedent’s death and apprise him that the
Decedent’s son, Mr. Deshong, would be in touch to discuss the Decedent’s
potential claim. It is clear then that by April 27, 2009 both Dr. Phillips and Mr.
Deshong were aware that the Decedent had consulted with Pegalis regarding a
potential medical malpractice claim prior to her death and therefore they both had
reason to suspect that Decedent’s injury was iatrogenic (that is, caused by her
doctor) as of that date. Moreover it is clear that Mr. Deshong was seeking
Pegalis’s legal advice on April 27, 2009 when Dr. Phillips informed Attorney
Nielsen that Mr. Deshong would contact him about his mother’s potential
malpractice claim. The fact that Mr. Deshong only got in touch with Pegalis
several months later on July 6, 2009 to formally follow up on his mother’s
potential claim is not dispositive because by April 27, 2009 Mr. Deshung3 was
aware of his mother’s prior consultation in which she suspected she had suffered
an iatrogenic injury and had agreed that he would follow up with Attorney
Nielsen. Therefore by April 27, 2009, both Dr. Phillips and Mr. Deshong knew or
should have known enough of the critical facts of the Decedent’s injury and
causation to protect themselves by seeking legal advice.
Indeed, the Second Circuit has held that “medical malpractice claims
brought under the FTCA can, and often will, accrue before a plaintiff actually
retains counsel and before counsel requests, let alone receives, the relevant
medical records… That a medical malpractice claim will often accrue before
fact that he had been informed of the Decedent’s passing and had no authority to
look into those records at that time.
3
The Court notes that Plaintiff does not raise any arguments based on the
Soldiers’ and Sailors’ Civil Relief Act of 1940.
14
counsel is retained makes perfect sense. An accrual date that turns on when a
plaintiff (or his lawyers) finally decides to take action, rather than when the
plaintiff was sufficiently alerted to the appropriateness of seeking legal advice,
would render the limitations period meaningless.” A.Q.C., 656 F.3d at 141
(emphasis in the original). The Second Circuit’s logic soundly refutes Plaintiff’s
argument that the accrual date should be July 6, 2009 when Mr. Deshong got in
contact with Attorney Nielsen as it is clear that by April 27, 2009 Mr. Deshong was
sufficiently alerted to the appropriateness of seeking legal advice when his uncle,
Dr. Phillips, called Attorney Nielsen and informed him that Mr. Deshong would be
in touch regarding his mother’s potential claim. July 6, 2009 is really the date
when Mr. Deshong finally decided to take action and not the date when he was
sufficiently alerted to the appropriateness of seeking legal advice. As the
Second Circuit unequivocally held, to credit the July 9, 2009 date in the instant
case would risk rendering the limitations period meaningless. Here there is no
question that both Mr. Deshong and Dr. Phillips were sufficiently alerted to the
appropriateness of seeking legal advice by April 27, 2009.
The Second Circuit has emphasized that the “key, again, is identifying the
time by which the plaintiff is told of or had reason to suspect that the injury
suffered related in some way to the medical treatment ... received.” Id. at 143
(internal quotation marks and citation omitted). Here, by April 26, 2009 it is clear
that both Dr. Phillips and Mr. Deshong were aware that the Decedent had
consulted Pegalis because she suspected that the injury suffered related in some
way to the medical treatment she had received. Therefore the Decedent’s actions
15
in consulting Pegalis put Dr. Phillips and Mr. Deshong on notice that the
Decedent might have suffered a potentially iatrogenic injury. Therefore as of
April 27, 2009, Dr. Phillips and Mr. Deshong were aware of the need to inquire
further to protect their rights. As the Second Circuit explained in A.Q.C., from
that point onward, Dr. Phillips, Mr. Deshong, and Pegalis “had ample time to
investigate the case and determine whether, against whom, and in what forum to
bring a malpractice action.” Id. The Second Circuit found that such a
“conclusion thus gives ample protection to plaintiffs who cannot be expected to
assess the potential for an action themselves… [and] it provides no cover for
temporizing plaintiffs or dilatory attorneys. If the cause of action did not accrue
until the attorneys obtained and reviewed the medical records, even had [plaintiff]
waited three, four, or ten years before retaining counsel, or had the firm waited a
similarly long time before beginning its investigation, that inaction would not
have prevented this claim from accruing.” Id. Since the Court finds that the
FTCA claim accrued on April 27, 2009, the Plaintiff’s June 30, 2011 complaint was
therefore untimely made and cannot be “saved” under 28 U.S.C. § 2679(d)(5).
iii.
Equitable tolling
Plaintiff argues that equitable tolling should apply to the FTCA’s two year
limitations period in this case as Plaintiff and his counsel acted with due
diligence in pursuing the claim by filing the March 31 Petition and despite such
diligence were unable to discover that Generations was covered by the FTCA.
Defendant argues that equitable tolling is not available in an action brought under
the FTCA and that in the event that equitable tolling is available Plaintiff cannot
16
establish either an extraordinary circumstance or the due diligence necessary to
justify application of equitable tolling. The question of whether equitable tolling
is even available in medical malpractice claims brought pursuant to the FTCA is
an open question in the Second Circuit. See A.Q.C., 656 F.3d at 144 n6. However,
this Court need not resolve this issue because the doctrine is inapplicable to the
facts of the instant case.
“Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,
544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). “Because statutes of
limitations protect important social interests in certainty, accuracy, and repose,
equitable tolling is considered a drastic remedy applicable only in rare and
exceptional circumstances” A.Q.C., 656 F.3d at 144 (internal quotation marks,
citations and alteration omitted). The Second Circuit “has applied the doctrine as
a matter of fairness where a plaintiff has been prevented in some extraordinary
way from exercising his rights, or has asserted his rights in the wrong forum.”
Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.1996) (internal quotation marks and
alterations omitted).
Plaintiff argues that he is entitled to equitable tolling because he timely
asserted his rights in the wrong forum and exercised the required due diligence.
Plaintiff argues that the Decedent’s family diligently pursued the claim and that
both New York and Connecticut counsel coordinated a continued investigation
and evaluation of the claim working with a medical expert. [Dkt. #22, p.28].
17
Plaintiff argues that his counsel exercised due diligence by reviewing the medical
records from Generations, the Generations website, investigating the corporate
status of Generations, and preparing the March 31 2011 Petition to extend the
state statute of limitations in Superior Court. Id. Plaintiff further argues that
their investigation “revealed no clue that Generations was ‘covered’ by the FTCA.
Id. at 21-22. Plaintiff maintains that there was nothing in the Generations medical
records to indicate that it was a Public Health provider under federal law or that it
was subject to the FTCA. Id. at 21-22. Lastly, Plaintiff argues that the
Generations website contained ambiguous and misleading information as to
whether it received federal funding or not. Id.
Plaintiff argues that the Third Circuit’s decision in Santos ex rel. v. U.S.,
559 F.3d 189 (3d Cir. 2009) supports a conclusion that the Plaintiff was pursuing
his rights diligently to warrant application of equitable tolling. In Santos, the
Third Circuit concluded that equitable tolling was warranted where medical
malpractice claim, initially filed as state suit by counsel who otherwise diligently
pursued the claim but failed to timely determine that the Defendant health care
providers were deemed to be federal employees subject to the FTCA. The Third
Circuit concluded that the plaintiff exercised due diligence because the facility
“apparently looked like a private clinic, and except for FTCA purposes the clinic
and its employees were private actors,” counsel corresponded with the facility,
obtained medical records, visited the facility and retained several expert records.
The Third Circuit reasoned that “[n]one of these inquiries, records, or visits, or
correspondence gave him a clue that the healthcare providers … were deemed
18
federal employees or that Santos could contact the Department of Human and
Health Services for more information about them.” Id. at 200. The Third Circuit
concluded that counsel’s assumption that the doctors were private actors subject
to state law was therefore not an unreasonable one. Id. at 201.
However, the facts and circumstances of the instant case are more similar
to the Second Circuit’s recent holding in A.Q.C. on this same issue than the Third
Circuit’s holding in Santos. In A.Q.C., the Second Circuit held that the Plaintiff’s
counsel’s dilatory response prevented the application of equitable tolling
assuming arguendo that such tolling applied to actions brought under the FTCA.
The Second Circuit concluded “that retained counsel, despite having the
information necessary to ascertain the proper defendants shortly after their
retention, merely conducted three periodic, internal reviews over the following
year-and-a-half to determine whether the case should move forward.” 656 F.3d.
at 144. The Second Circuit explained that “[i]t is fundamental that a lawyer
investigating a possible claim on behalf of a client needs to investigate not only
whether a potential claim exists in the abstract, but also who would be the
appropriate parties to sue, and what, if any, restrictions on the time and forum for
bringing such a claim might exist.” Id. at 145. The Second Circuit noted that the
firm Fitzgerald & Fitzgerald, “which advertises itself as a ‘top firm in the medical
malpractice field,’ had previous experience with this very issue” and reasoned
that “[i]t is hard to understand why any lawyer – let alone a lawyer at a firm
specializing in medical malpractice with specific prior acquaintance with this
issue – would not investigate the federal nature of potential defendants as part of
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standard due diligence in every medical malpractice case. Having neglected to
take that simple step, the Firm cannot now argue that it diligently pursued this
claim on A.Q.C.’s behalf.” Id. In the present case, Pegalis, like Fitzgerald &
Fitzgerald, advertises itself as “[r]ecognized by the legal community as a Top Tier
medical malpractice firm” and therefore should have known to investigate the
federal nature of a potential defendant as part of its standard due diligence. See
http://www.pegalisanderickson.com/ (last visited August 14, 2012).
The Second Circuit in A.Q.C. also concluded that “no extraordinary
obstacle prevented the Firm from identifying Dr. Castillo's federal status (and
therefore the particular requirements for filing suit under the FTCA) in a timely
way. Even the most cursory investigation would have revealed the federal nature
of A.Q.C.'s claim. To determine that status, all the Firm had to do was either call a
government-sponsored toll-free number or enter ‘Urban Health Plan’ into the
online database maintained by the Health Resources and Services
Administration, an agency within DHHS. Had the Firm taken either of those steps
within the first twenty-two months of its relationship with Ms. Castillo, it would
have learned—just as it did in February 2008 when it belatedly chose to make
precisely that inquiry—that A.Q.C.'s claim was covered by the FTCA. As a result,
the Firm cannot now claim that the federal nature of this action was somehow
hidden from view.” 656 F.3d at 145. The same reasoning applies in the instant
case as Plaintiff’s counsel could have easily discovered Generations’s federal
status by either calling a government-sponsored toll-free number or entering
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“Generations Family Health Center” into the Health Resources and Services
Administration’s website.
Additionally, the Second Circuit rejected the plaintiff’s argument in A.Q.C.
that it had no reason to suspect that Defendant was a federally funded clinic. The
Second Circuit rebuked this reasoning finding that “common sense – let alone
years of experience in medical malpractice litigation – would alert a reasonable
advocate to the possibility that a community health clinic with the professed
mission of ‘improv[ing] the health status of underserved communities’ would be
federally funded. In fact, the statutory scheme at issue defines ‘health center’ for
purposes of FTCA coverage in part as ‘an entity that serves a population that is
medically underserved.’” Id. (quoting 42 U.S.C. § 254b(a)(1)). In the instant case,
Plaintiff admits that the Generations’s website indicated that it “received Health
Care to the Homeless funding agency wide. In addition, each site uses various
resources to provide quality healthcare to homeless individuals.” [Dkt. #22, Ex.
C, ¶26]. Plaintiff contends that an internet or “google” search for Health Care to
Homeless “revealed that there are numerous private and state funded
organizations nationwide providing aid for the homeless, but revealed no
connection of such programs to the federal government or to federal funding.”
Id. Although Plaintiff attempts to prove due diligence through this internet or
“google” search, as the Second Circuit explained common sense, let alone years
of experience in medical malpractice litigation as Pegalis had, would alert a
reasonable advocate to the possibility that a health center that professes on its
website that it “uses various resources to provide quality healthcare to homeless
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individuals” might be federally funded. As the Second Circuit explained, all
Plaintiff’s counsel had to do to discover the federal nature of Generations was to
call a government-sponsored toll-free number or enter “Generations Family
Health Center” into the Health Resources and Services Administration’s website.
The fact the Generations indicated on its website that it “uses various resources
to provide quality healthcare to homeless individuals” that should have put a
reasonably experienced advocate on alert that the defendant facility might be
federally funded and subject to the FTCA.
Here, the facts and circumstances of the present case are more similar to
A.Q.C. than Santos. In fact, the Second Circuit in A.Q.C. commented that the
Third Circuit’s reasoning in Santos was “unavailing. That decision rested on the
perceived lack of publically available information that would have alerted the
plaintiff that the allegedly negligent healthcare providers had been deemed
federal employees. Here, unlike, in Santos, the record identifies multiple publicly
available sources of that information.” A.Q.C., 656 F.3d at 146 n.7 (internal
quotation marks, alterations and citations omitted). In the present matter as was
the case in A.Q.C. there were multiple publicly available sources of information
that would have alerted an experienced medical malpractice firm like Pegalis that
Generations was federally funded.
Moreover, the Decedent’s family also displayed a lack of diligence in
pursuing this matter. Both Dr. Phillips and Mr. Deshong were well aware that the
Decedent sought legal advice even before her death. Dr. Phillips, who was a
medical doctor himself, advised Attorney Nielsen of her death. The Decedent’s
22
son, Mr. Deshong, assumed responsibility for the affairs of her estate while
admittedly unavailable to discharge them. Mr. Deshong waited over three
months from his mother’s death to follow up with Attorney Nielsen regarding her
claim. Attorney Nielsen attested that that over the next eight months it was
“impractical” to work with Mr. Deshong to attend to the legal details of his
mother’s estate. In March 2010 almost a year following his mother’s death, Mr.
Deshong informed Attorney Nielsen that his uncle, Dr. Phillips, would be taking
charge of his mother’s estate. Dr. Phillips then only got in touch with Attorney
Nielsen three months later in July 2010. It was only after July 2010 that the
Decedent’s family began in earnest to pursue the claim and attend to the
Decedent’s estate which was well over a year after the Decedent’s death. In light
of these facts, this Court cannot find that the Decedent’s family exercised due
diligence. It appears that retained counsel was hampered in its ability to
represent the Decedent’s interest by the her family particularly in light of the fact
that under Connecticut law prior reasonable inquiry and a certificate of good faith
including a signed opinion by a health care provider that there appears to be
evidence of medical negligence must be obtained before filing a medical
malpractice action. See Conn. Gen. Stat. §52-190a. Consequently, this Court
finds that Plaintiff cannot establish the required due diligence and therefore
equitable tolling cannot save Plaintiff’s otherwise untimely complaint.
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Conclusion
Based upon the above reasoning, the Defendant’s [Dkt. #12] motion to
dismiss is GRANTED without leave to file an administrative claim. The Clerk is
directed to close the case.
IT IS SO ORDERED.
________/s/________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: August 17, 2012
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