Coleman v. USA

Filing 74

ORDER denying 44 Motion to Dismiss. Ordered by Judge Clay D. Land on 09/29/2008. (mkw)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION KYLER COLEMAN, a minor, by and through his Parents and Natural Guardians, BRANDI COLEMAN AND LARRY POOLE, and BRANDI COLEMAN AND LARRY POOLE, Individually, Plaintiffs, vs. UNITED STATES OF AMERICA, Defendant. * * * * * * * * ORDER This case arises from injuries suffered at birth by Plaintiff Kyler Coleman. Presently pending before the Court is Defendant's CASE NO. 4:05-CV-17 (CDL)

Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. 44). For the following reasons, the Court denies Defendant's motion. FACTUAL BACKGROUND On July 14, 1997, Plaintiff Kyler Coleman was born at Martin Army Community Hospital ("MACH") at Fort Benning, Georgia. ¶ 15.) (Compl.

When Kyler's mother, Brandi Coleman, arrived earlier that

morning for a regularly-scheduled doctor's appointment, she reported noticing a slight decrease in fetal movement over the previous three days. (Coleman Dep. 30:12-32:8, Sept. 28, 2007.) Kyler was

delivered by emergency Caesarean-section after the MACH medical staff observed signs of potential fetal distress. (Coleman Decl. ¶ 3, Mar. 3, 2008.) 1

Kyler experienced numerous problems following his emergency delivery. After his birth, the MACH staff found a blood clot in (Coleman Dep. 56:17-20.) Kyler also had

Kyler's umbilical cord.

poor coloring, responsiveness, and reflexes, and meconium had to be suctioned from his throat.1 (See Ex. C to Pls.' Resp. to Def.'s Mot.

to Dismiss at 136.) In addition, Kyler's blood glucose level dropped to zero at some point. (Id. at 134.) Kyler also developed

respiratory difficulties and pulmonary hypertension, and he was eventually transported to the Medical Center in Columbus, Georgia for treatment in the neonatal intensive care unit. (See Coleman Decl. ¶¶ 5-7.) Kyler remained at the Medical Center for about eight days and

returned to MACH for about two days before he was discharged. (Coleman Dep. 63:17-20; 69:20-24.) Ms. Coleman alleges that she was

told that Kyler's injuries were caused by aspiration of meconium and pulmonary hypertension, which were "unpreventable." ¶¶ 4-6; see also Coleman Dep. 51:6-11.) Kyler's blood glucose problems. (Coleman Decl.

No mention was made of

(Coleman Dep. 65:24-66:4.)

Kyler saw physicians at MACH for the first nine months of his life. (See Coleman Dep. 71:7-22.) After nine months, Ms. Coleman

took Kyler to Dr. Rita Moreck, a pediatrician in private practice in Columbus. (Id. at 72:24-73:2.) Dr. Moreck observed that Kyler was

Meconium is fecal material released by a fetus, and meconium aspiration poses serious health risks to the fetus. Ms. Coleman was told by nurses at MACH that "they needed to perform a c-section because there was meconium in my amniotic fluid." (Coleman Decl. ¶ 3.)

1

2

developmentally delayed and microcephalic,2 and she found it "clear . . . that Kyler was neurologically devastated and that his problems resulted from an event which occurred at around the time of his birth." (Moreck Decl. ¶ 4, Feb. 5, 2008.) Ms. Coleman informed Dr.

Moreck that Kyler's caregivers at MACH observed meconium-stained fluid at birth and pulmonary hypertension, and Dr. Moreck "told Ms. Coleman that Kyler's developmental problems and neurological deficits were a result of trauma that happened at or around the time of his birth." (Id.) Dr. Moreck suggested that Ms. Coleman begin seeking (Id. ¶ 5.) Kyler was also sent for a CT (Coleman Dep.

specialists to treat Kyler.

scan, which confirmed that Kyler had brain damage. 78:3-10.)

Kyler was later diagnosed with cerebral palsy and was

treated at a multi-disciplinary cerebral palsy clinic. (Coleman Dep. 96:1-22.) Ms. Coleman was prompted to seek legal advice when Kyler was approximately seven years old after she encountered a patient in a nursing home whose cerebral palsy had been caused by "birth

injuries."

(Coleman Dep. 74:11-23.)

Ms. Coleman retained counsel (Id. at 74:22-

because she "wanted to know what really happened." 23.) medical

Plaintiffs' counsel attempted to recover Kyler's complete records from MACH, and in the meantime, he filed an

administrative claim with the Government Claim Office at Fort Benning "in order to preserve Kyler's legal claims." (Nohr Decl. ¶¶ 3-7,

2

"Microcephalic" means that Kyler had an unusually small head size.

3

Mar. 10, 2008.)

After receiving a portion of Kyler's records,

Plaintiffs' counsel hired an expert to examine them; the expert opined that Kyler's neurological problems were caused by (Id.

hypoglycemia, an abnormally low level of glucose in the blood. ¶ 8.)

Plaintiffs filed their Complaint in this Court on February 18, 2005, alleging that MACH personnel committed medical malpractice because they "(a) did not properly test and monitor Kyler for hypoglycemia, (b) ignored the signs and symptoms of hypoglycemia Kyler was exhibiting after birth, and (c) failed to promptly and adequately treat Kyler's hypoglycemia when recognized." 18.) to (Compl. ¶

Plaintiffs alleged that these acts and omissions caused Kyler a prolonged episode of profound but preventable

"suffer[]

hypoglycemia" which in turn caused Kyler "to suffer from permanent and irreversible neurological injury and its sequelae[.]"3
3

(Compl.

In their administrative claim, filed July 12, 2004, Plaintiffs contended that Kyler's injuries included "permanent and irreversible neurological injury and its sequelae, including but not limited to cerebral palsy, spastic quadriparesis, microcephaly, psychomotor retardation, hypotonia, cerebral atrophy, and bilateral subluxated hips with bilateral lower extremity contractures." (Ex. A to Pls.' Compl. at 4.) Plaintiffs contended these injuries were caused by "medical n e gligence," but they hypothesized more specifically that the cause of Kyler's injuries was "perinatal asphyxia, hypoxic-ischemic encephalopathy, and brain damage." (Id. at 3.) Plaintiffs did not mention hypoglycemia as a source of Kyler's injuries in their administrative claim. Plaintiffs' counsel contends that the first time he received notice that hypoglycemia was a potential cause of Kyler's neurological injuries was after he had already filed the administrative claim. (Nohr Decl. ¶ 8.) Accordingly, Plaintiffs' Complaint identifies the "actual" cause of Kyler's injuries--the same "permanent and irreversible neurological injury and its sequelae" as listed in their administrative claim­as the failure of MACH personnel to recognize and treat Kyler's hypoglycemia. (See, e.g., Compl. ¶ 19.) Additionally, Plaintiffs' counsel contends that

4

¶ 19.)

Defendant filed the presently-pending motion to dismiss on

the basis that Plaintiffs' cause of action was filed well outside the two-year statute of limitations applicable to federal tort claims, and therefore the Court lacks jurisdiction to decide the merits of Plaintiffs' claims. DISCUSSION I. Standard of Review Defendant moves to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction.4 The Eleventh Circuit recognizes two

types of challenges to a district court's subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. A

"facial attack" on a complaint "require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction[.]" Lawrence v. Dunbar, 919 F.2d 1525,

medical records obtained after Plaintiffs filed their Complaint "revealed facts never previously known, including when the Government first knew Kyler's blood sugar was zero, the duration and extent of Kyler's hypoglycemia, the responsive measures taken by MACH nursing and medical staff, and the circumstances that contributed to the delay in recognition of and treatment for Kyler's hypoglycemia." (Nohr Decl. ¶ 11.) A circuit split exists as to whether "the timely filing of an administrative claim . . . is a jurisdictional prerequisite to filing suit under the [Federal Tort Claims Act]." Compare Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003) (timely filing claim is jurisdictional), with Hughes v. United States, 263 F.3d 272, 278 (3d Cir. 2001) (compliance with statute of limitations is an affirmative defense). In the Eleventh Circuit, compliance with the two-year statute of limitations is jurisdictional. Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008) ("A federal court does not have jurisdiction over a suit under the [Federal Tort Claims Act] unless the claimant first files an administrative claim with the appropriate agency . . . within two years from the time the claim accrues . . . accompanied by a claim for money d a m a ges in a sum certain.") (internal quotation marks omitted) (alterations in original)).
4

5

1529 (11th Cir. 1990) (second alteration in original) (internal quotation marks and citation omitted). On the other hand, a "factual attack" on a complaint "challenge[s] the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are

considered."

Id. (internal quotation marks and citation omitted).

Defendant mounts a factual attack on Plaintiff's Complaint. "On a factual attack of subject matter jurisdiction, a court's power to make findings of facts and to weigh the evidence depends on whether the factual attack on jurisdiction also implicates the merits of plaintiff's cause of action." Garcia v. Copenhaver, Bell & Assocs., When the facts of the

M.D.'s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997). related to jurisdiction do not implicate an

element

plaintiff's claim, then "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. (internal quotation marks omitted). When the facts

related to jurisdiction do implicate the merits of a plaintiff's cause of action, then "[t]he proper course of action for the district court . . . is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case[.]" Id. (internal quotation marks omitted) (second alteration

in original). The Court finds that the determination of when Plaintiffs' cause of action accrued in this case does not implicate the merits of their 6

tort claims. trial on the

Thus, the Court will essentially "conduct[] a bench facts that give rise to its subject matter

jurisdiction."

Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1238 The Court will "weigh the evidence and satisfy [N]o

(11th Cir. 2002).

itself as to the existence of its power to hear the case. . . .

presumptive truthfulness attaches to 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 claims.'" Lawrence, 919 F.2d at 1529 (quoting Williamson v. Tucker,

645 F.2d 404, 412-13 (5th Cir. 1981)). Plaintiffs bear the burden of establishing that jurisdiction exists in the face of Defendant's factual challenge to subject matter jurisdiction. See, e.g., OSI,

Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002). II. Plaintiffs' Jurisdictional Allegations Plaintiffs assert medical malpractice claims against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. A tort claim against the United States is "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).

"The general rule is that a claim under the FTCA accrues at the time of injury." Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir.

1999) (citing United States v. Kubrick, 444 U.S. 111, 120 (1979)). However, this rule has been modified in medical malpractice cases in order "to protect plaintiffs who are blamelessly unaware of their 7

claim because the injury has not yet manifested itself or because the facts establishing a causal link between the injury and the medical malpractice are in the control of the tortfeasor or are otherwise not evident." Id. Thus, a claim for medical malpractice does not accrue Id.

until "the plaintiff knows of both the injury and its cause."

In determining whether a plaintiff knows of the cause of his or her injury, it is clear that a plaintiff does not need to understand that the injury may have resulted from medical malpractice; in other words, the plaintiff does not have to be aware that his injury was negligently inflicted. See Kubrick, 444 U.S. at 116-17, 123. Still, the plaintiff must have notice that the government caused the injury: "[t]he cause of which a federal tort claimant must have notice for the statute of limitations to begin to run is the cause that is in the government's control, not a concurrent but independent cause that would not lead anyone to suspect that the government had been responsible for the injury. The notice must be not of harm but of iatrogenic [doctor-caused] harm, though, as Kubrick holds, not necessarily of negligent iatrogenic harm." Diaz, 165 F.3d at 1340 (second alteration in original) (quoting Drazan v. United States, 762 F.2d 56, 59 (7th Cir. 1985)); see also Price v. United States, 775 F.2d 1491, 1494 (11th Cir. 1985) (holding that "a medical malpractice claim under the FTCA accrues 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"). This rule does not permit a plaintiff to "bury her head in the sand once she is put on notice that the government may have caused an 8

injury."

Diaz, 165 F.3d at 1339.

In Price v. United States, the

district court granted summary judgment to the defendant on the grounds that the plaintiffs' FTCA complaint was barred by the twoyear statute of limitations. A doctor at the defendant Naval

hospital performed a hysterectomy on the plaintiff after determining she was not pregnant. The plaintiff was, in fact, eight weeks

pregnant, and she lost the fetus as a result of the hysterectomy. Price, 775 F.2d at 1493. The plaintiff "made no attempt to ascertain what had gone wrong" until nearly three years after the hysterectomy, and consequently, she brought her medical malpractice claim after the two-year statute of limitations had expired. Id. The Eleventh

Circuit found that "[u]pon learning that she lost a fetus, [the plaintiff] was on notice that there had probably been an act of negligence. . . . The only reason she did not find out the Id. at

particular cause of her injury is that she did not ask." 1494.

The court concluded that "[o]nce the plaintiff discovers that

her injury is probably attributable to some act of those who treated her, there is no longer any reason to toll the statute of

limitations," and it affirmed the district court's grant of summary judgment in favor of the defendant. Id at 1493-94.

In this case, Defendant argues that Plaintiffs' claim accrued well before Plaintiffs filed their administrative claims on July 13, 2004, which was nearly seven years after Kyler's birth. contends that Ms. Coleman was aware "in July, 1997 Defendant of the

9

difficulties surrounding the childbirth, Kyler's poor color and lack of cry after his birth, the hematoma in the umbilical cord, and the respiratory distress that caused Kyler to be hospitalized at the Medical Center." (Def.'s Mot. to Dismiss 7.) In addition, Defendant argues that (1) in April 1998, Ms. Coleman was told by a private physician that "Kyler had developmental problems and neurological deficits that resulted from trauma at or around the time of his birth"; (2) "[i]n May, 1998, Kyler received a CT scan of his brain which confirmed brain damage"; and (3) "Kyler was treated by a number of specialists . . . and by at least December 1999 was being seen in a special multi-disciplinary cerebral palsy clinic." (Id.) In

essence, Defendant argues that "Plaintiffs' only reason for not finding out the `particular cause' of the injury is because they `did not ask.'" 1494).) (Def.'s Mot. to Dismiss 7 (quoting Price, 775 F.2d at

Thus, Defendant contends, just as in Price, Plaintiffs'

claims should be time-barred because Plaintiffs knew of Kyler's injuries and the possible connection to MACH medical providers by at least December of 1999. The facts of this case are materially different from those of Price, however. First, the cause of the injury in Price was known to Price, 775 F.2d at

the plaintiffs as soon as the injury occurred.

1494 (finding that "appellant knew within days of her operation that there had been some mistake in connection with the pregnancy test, and that those who treated her were probably responsible for her loss

10

of the fetus"). hypoglycemia,

In this case, Plaintiffs did not learn of Kyler's alleged cause of Kyler's injuries, until

the

Plaintiffs' attorney secured Kyler's complete medical records from Defendant in July of 2004. (See Nohr Decl. ¶¶ 4, 5.)

Second, the record in this case suggests that Ms. Coleman did, in fact, investigate the cause of Kyler's injuries. Ms. Coleman

stated that she specifically inquired as to the cause of Kyler's injuries at MACH and at the Medical Center. (Coleman Decl. ¶¶ 6, 7.) In contrast, the plaintiffs in Price "made no attempt to ascertain what had gone wrong." Price, 775 F.2d at 1493; see also Kubrick, 444

U.S. at 122-23 ("Kubrick need only have made inquiry among doctors with average training and experience in such matters to have The

discovered that he probably had a good

cause of action.

difficulty is that it does not appear that Kubrick ever made any inquiry . . . ."). Third, and most importantly, Ms. Coleman avers that medical professionals told her (1) that the cause of Kyler's injuries was meconium aspiration and pulmonary hypertension (Coleman Decl. ¶¶ 3-5, 7); (2) that Kyler may have developmental delays because he had been on a ventilator to treat problems related to meconium aspiration and pulmonary hypertension (id. ¶ 7); and (3) that Kyler's injuries were not preventable and "that no one did anything wrong" (id. ¶¶ 6, 12).5

5 It is notable that these assurances came not only from MACH personnel, but also from medical professionals employed by parties other than Defendant. (See, e.g., Coleman Decl. ¶¶ 7, 9, 11.)

11

In addition, Ms. Coleman testified that no one ever told her that Kyler's blood glucose level had dropped to zero. 65:24-66:4.) assurances. were Ms. Coleman averred that she (Coleman Dep. at relied on these

(See, e.g. Coleman Decl. at ¶ 12 ("I assumed the doctors me the truth and that [Kyler's] ("I problems what were the

telling

unpreventable."); doctors told me. anything else.").

Coleman

Dep.

140:21-23

believed

I mean, I didn't have any reason to believe

"[P]laintiffs seeking to understand the cause of an injury may reasonably rely on advice and assurances by doctors." United States, 835 F.2d 1350, 1353 (11th Cir. 1988). Chamness v. Accordingly,

the two-year statute of limitations prescribed by the FTCA may be tolled during periods of time that a plaintiff reasonably relies on her doctors' explanation of cause or assurances of recovery. See,

e.g., Burgess v. United States, 744 F.2d 771, 774-75 (11th Cir. 1984) (holding that FTCA statute of limitations should have been tolled during period of time when parents knew of child's injury but were reassured by doctors that the child would fully recover); accord Winter v. United States, 244 F.3d 1088, 1090 (9th Cir. 2001) ("[A] cause of action does not accrue under the FTCA when a plaintiff has relied on statements of medical professionals with respect to his or her injuries and their probable causes.") Defendant argues that information provided by Dr. Moreck, who first treated Kyler when he was nine months old, should have

12

triggered Ms. Coleman's duty to investigate the cause of Kyler's injuries. Dr. Moreck informed Ms. Coleman "that Kyler's

developmental problems and neurological deficits were a result of trauma that had happened at or around the time of his birth." (Moreck Decl. ¶ 4.) However, Ms. Coleman avers that "Dr. Moreck

never mentioned the word `trauma' and never told me that any of Kyler's problems were caused by `trauma,' and I do not even know what that means." (Coleman Decl. ¶ 11; see also Def.'s Ex. 2 to Coleman

Dep., Physician Notes, Apr. 20, 1998 ("I feel that all this is probably related to whatever happened at birth secondary to the pulmonary hypertension.").) Regardless of the terminology actually

used by Dr. Moreck, Ms. Coleman also attested that she believed Dr. Moreck "was agreeing with the other doctors that said Kyler's problems were `unpreventable.'" (Coleman Decl. ¶ 11.)

Furthermore, Dr. Moreck's assessment came after Ms. Coleman had already informed Dr. Moreck that Kyler had problems with meconium aspiration and pulmonary hypertension at birth. Dr. Moreck

apparently relied on the information provided by Ms. Coleman and did not independently check Kyler's medical records to confirm her analysis. (Coleman Decl. ¶ 10; Def.'s Ex. 1 to Coleman Dep., More importantly, Dr. Moreck's

Physician Notes, Apr. 20, 1998.)

statement merely confirmed what Ms. Coleman already knew: that Kyler had been injured and that his injuries likely occurred at or near the time of his birth. Dr. Moreck's declaration does nothing to explain

whether Ms. Coleman should have known that Defendant's act or 13

omission, and not other "unpreventable" birth-related complications, caused Kyler's injuries. The same is true of the other evidence

Defendant contends should have triggered Ms. Coleman's duty to seek medical and legal advice about Kyler's injuries. Although Ms.

Coleman was aware of the various problems surrounding Kyler's birth and his later diagnoses, knowing that Kyler suffered injuries at the time of his birth is not equivalent to knowing that an act or omission of Defendant caused those injuries because not all

complications arising from childbirth are attributable to human error. See, e.g., Diaz, 165 F.3d at 1340 (holding that "[w]hen there

are two causes of an injury, and only one is the government, the knowledge that is required to set the statute of limitations running is knowledge of the government cause, not just of the other cause" (internal quotation marks omitted) (alteration in original)). In sum, Ms. Coleman attests that she did not investigate the cause of Kyler's injuries because she was reassured by medical professionals that the cause of Kyler's injuries was unpreventable meconium aspiration and pulmonary hypertension. Therefore, based on

the present record, Defendant is not entitled to dismissal on the basis that Ms. Coleman knew, or reasonably should have known, that Kyler's injuries resulted from an act or omission of MACH personnel.6

The Court reiterates that its decision is based on the present record, which demonstrates that Ms. Coleman relied on explanations provided by medical personnel regarding the origins of Kyler's injuries. Thus, the fact that Ms. Coleman's investigation into Kyler's injuries was prompted by her chance encounter with a nursing home patient who exhibited symptoms similar to Kyler's was simply fortuitous; it is not, as Defendant

6

14

CONCLUSION It is clear that Ms. Coleman endured a complicated and difficult delivery and that Kyler suffered serious injuries as a result. What

is unclear from the present record is when Ms. Coleman should reasonably Defendant's have acts made or the link between Given Kyler's injuries and

omissions.

Ms.

Coleman's

virtually

undisputed testimony that medical professionals lulled her into a false belief that Kyler's problems were attributable to pulmonary hypertension and meconium aspiration and were not preventable, the Court finds that the statute of limitations was tolled until she made the link between Defendant's acts and her child's injuries. Court further finds that taking the tolling period The into

consideration, Plaintiff's claim was timely filed.

Accordingly, the

Court denies Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. 44). IT IS SO ORDERED, this 29th day of September, 2008. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE

suggests, evidence that Ms. Coleman failed to exercise reasonable diligence in investigating Kyler's condition. The Court also notes Defendant's argument that Ms. Coleman could have requested Kyler's records, which contained references to Kyler's hypo g l y c emia, in a more timely manner. However, at least one court of appeals has recognized that it would be "ghoulish" to require that "any time someone suffered pain or illness or death in a [government] hospital . . . [he must] request his hospital records to see whether diagnosis or treatment might have played a role in his distress." Drazan, 762 F.2d at 59. This is particularly true in this case, where the evidence before the Court indicates that Ms. Coleman relied on the opinions of medical professionals who had presumably either written or examined those records.

15