Mitchell v. Jacob et al

Filing 80

ORDER granting 54 Government's Motion to Dismiss First Amended Complaint, or in the alternative, for Summary Judgment. The government's motion is granted on the grounds that plaintiff's claim against the United States runs afoul of the applicable statute of limitations. Accordingly, the Court finds in favor of defendant, United States of America, and against plaintiff, Kyna Mitchell. The Clerk of the Court shall enter judgment accordingly at the close of the case. Signed by Judge David R. Herndon on 3/6/2018. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KYNA MITCHELL,
Individually and as Mother and
Next Friend of D.M., a Minor,
Plaintiff,
v.

No. 3:15-cv-00823-DRH-SCW

ALTON MEMORIAL HOSPITAL,
and UNITED STATES OF AMERICA,
Defendants.
ORDER
HERNDON, District Judge:
Before the Court is the government’s Motion to Dismiss Plaintiff’s First
Amended Complaint, or in the alternative, for Summary Judgment (doc. 54).
Plaintiff opposes the motion (doc. 56). Supplemental briefing was filed by both
parties on the issue of the statute of limitations (docs. 74, 79).

Based on the

following, the Motion to Dismiss, or in the alternative, for Summary Judgment, is
GRANTED as to the claims against defendant, United States of America.
I. BACKGROUND
A. The Amended Complaint
On May 17, 2017, Kyna Mitchell (“plaintiff”), individually and as mother
and next fiend of Infant DM (“D.M.”), filed an amended complaint naming as
defendants the United States of America and Alton Memorial Hospital, alleging
violation of the Federal Tort Claims Act (“FCTA”) pursuant to 28 U.S.C. § 2674

1

(doc. 45). Specifically, plaintiff states on or about February 20, 2007, she was
admitted to Alton Memorial Hospital for induction of labor due to complications
stemming from preeclampsia1 (Id. at ¶ 3). During labor, physician Dr. Saji Jacob
(“Dr. Jacob”) performed a vacuum assisted vaginal delivery which caused D.M.’s
posterior shoulder to become stuck behind plaintiff’s pelvic bone, further
complicating delivery (Id. at ¶¶ 4,5). As a result, D.M. suffered permanent nerve
root damage and was diagnosed with a brachial plexus injury, requiring D.M. to
undergo physical therapy after birth for weakness and lack of mobility in her left
shoulder and arm (Id. at ¶ 24). Plaintiff asserts claims of defendants’ violation of
appropriate standards of care and negligent conduct, pain and suffering, future
medical treatment, and future loss of income and earning capacity—pursuant to §
2674. For relief, she requests judgment against defendants and just damages.
B. Government’s Motion to Dismiss or for Summary Judgment
The government filed its Motion to Dismiss Plaintiff’s First Amended
Complaint, or in the alternative, for Summary Judgment (doc. 54) in response,
arguing that plaintiff filed her Original Complaint in July of 2015 (some eight
years after D.M.’s birth) before the government was adjoined as a defendant (see
doc. 1); then named the government as defendant and subsequently dismissed the
claim before exhausting administrative remedies as required under the FTCA—all
prior to rejoining the government as defendant in plaintiff’s Amended Complaint
(doc. 54).
1

Preeclampsia is a pregnancy complication characterized by high blood pressure and damage to
the liver and kidneys usually beginning after 20-weeks of pregnancy.

2

The government insists a “fresh suit” must be initiated after administrative
remedies were exhausted, and because it was added as defendant in plaintiff’s
Original Complaint—and purports to be a defendant throughout the overall
action—FTCA claims are prohibited against it (Id.). Moreover, the government
maintains plaintiff had 2-years from shortly after D.M.’s birth, on or around
February 23, 2007 to bring her claim, and therefore has run afoul of FTCA statute
of limitations. As a result, the government requests the Court dismiss the instant
action, or in the alternative, grant summary judgment in its favor on the following
two grounds: (1) failure to exhaust administrative remedies prior to commencing
suit; and (2) failure to commence action prior to the running of applicable statute
of limitations (doc. 54).
In opposition, plaintiff contends the government was dismissed without
prejudice from the original action explicitly to allow for exhaustion of
administrative remedies and the refiling of an amended complaint (doc. 56).
Plaintiff argues a “fresh suit” was initiated after the denial of her claim with the
Department of Health and Human Services (“DHHS”) on February 6, 2017; and,
from November 6, 2015 through May 17, 2017, Alton Memorial Hospital was the
named defendant—not the government—because the effect of voluntarily
dismissing a lawsuit is to behave if the suit had never been brought (Id. at 2).
Therefore, plaintiff vies exhaustion was complete prior to filing her amended

3

complaint, and further argues having no knowledge of doctor-caused injuries until
retaining counsel and filing the original complaint in 2015.2
II. ANALYSIS
A. Effect of Rule 41 Voluntary Dismissal
Rule 41 of the Federal Rules of Civil Procedure permits a plaintiff to
request voluntary dismissal of a lawsuit without prejudice by way of court order.
See FED. R. CIV. P. 41(a)(2) (explaining Rule 41 dismissal is without prejudice
unless court order states otherwise).

Put differently, voluntary dismissal

essentially erases a lawsuit. See Nelson v. Napolitano, 657 F.3d 586, 587-88
(7th Cir. 2011) (stating generally that suit voluntarily dismissed under Rule 41(a)
is treated as if never been filed; and unless stipulation states otherwise dismissal
is without prejudice); cf. Smith v. Potter, 513 F.3d 781, 782-83 (7th Cir. 2008)
(litigation generally depends on existence of live claim).
Here it is undisputed both parties agreed to dismiss plaintiff’s original
complaint without prejudice, and further, plaintiff was permitted the right to
recommence the action subsequent exhaustion of administrative remedies. Once
the Court granted the Joint Motion to Dismiss Plaintiff’s Original Complaint
without prejudice3—the government was no longer a litigant.

Therefore, the

government’s contention that dismissal of an FTCA claim is obligatory pursuant

2

Further, plaintiff argues applicability of equitable tolling regarding FTCA claims to counter
defendant’s statute of limitation defense (Id. at 11-14).

3

See Minute Order Granting 15 Joint Motion to Dismiss without Prejudice, Mitchell v. Jacob et al,
No. 3:15-cv-823-DRH-SCW (S.D. Ill. Nov. 6, 2015), ECF No. 16.

4

to 28 U.S.C. § 2675(a)4 supported by rationale used in McNeil v. United States,
508 U.S. 106, 112 (1993)5 is erroneous. “[W]hen, as here, a case is voluntarily
dismissed pursuant to Rule 41(a)(2), the Federal Rules of Civil Procedure control
and the action is treated as if it had never been filed.” Robinson v. Willow Glen
Acad., 895 F.2d 1168, 1169 (7th Cir. 1990); see also Taylor v. Brown, 787 F.3d
851, 857 (7th Cir. 2015) (Rule 41(a) “speaks of dismissing ‘an action’—which is to
say, the whole case.”); Jenkins v. Village of Maywood, 506 F.3d 622, 624 (7th
Cir. 2007) (“a Rule 41(a) voluntary dismissal terminates the case all by itself”).
Plaintiff is correct when she states that no claim existed against the United States
at the time she moved to join the United States after exhaustion of administrative
remedies, thus distinguishing the government’s reliance on Collier v. Caraway, et
al., No. 14-cv-365-JMS, 2017 WL 347481 (S.D. Ind. Jan. 24, 2017), Old National
Trust Co. v. United States, No. 12-cv-0197-MJR-DGW, 2013 WL 3944432 (S.D.
Ill. July 31, 2013) and Worthem v. Hall, No. 07-cv-7255, 2009 WL 5126117 (N.D.
Ill. Dec. 23, 2009).

4

An action shall not be instituted upon a claim against the United States for money damages for
injury or loss of property or personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office or
employment, unless the claimant shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the agency in writing and sent by certified or
registered mail.

5

See McNeil, 508 U.S. at 112 (stating “[t]he most natural reading of the statute indicates that
Congress intended to require complete exhaustion of Executive remedies before invocation of the
judicial process.”).

5

Plaintiff is accurate in reasoning the government was no longer a defendant
prior to the filing of her Amended Complaint.6 Therefore—upon exhaustion of
administrative remedies on February 6, 20177—plaintiff was permitted to initiate
an FTCA claim against the government. Cf. Richmond v. Chater, 94 F.3d 263,
267 (7th Cir. 1996) (explaining after dismissal without prejudice plaintiff may file
new complaint and filing fee against dismissed defendant).

However, agreeing

with plaintiff that, procedurally, an FTCA claim stands based on the underlying
facts of this case, does not mean the Court agrees that such claim was timely filed.
B. Government’s Motion for Summary Judgment to Dismiss Plaintiff’s Claim
as Time-Barred Under the Two-Year Statute of Limitations Period
i. Legal Standard
Having

disposed

of

the

voluntary

dismissal

and

exhaustion

of

administrative remedies issue, the Court is left with arguments regarding the
FTCA’s statute of limitations (“SOL”).

In its motion, the government seeks

dismissal under Federal Rule of Civil Procedure 12(b)(6) or summary judgment
under Federal Rule of Civil Procedure 56. The Court, having reviewed all relevant
material, including the parties’ supplemental briefing on the SOL8, analyzes this
6

On May 17, 2017, the magistrate entered an order granting plaintiff’s First Amended Motion to
Amend the Complaint and Join the United States. See Doc. 44. Plaintiff’s Amended Complaint
was filed the same day. See Doc. 45.
7

On May 3, 2016, plaintiff filed an administrative claim with the Department of Health and
Human Services. Tellingly, that claim was denied as untimely by the Department on February 6,
2017, because the administrative claim was received more than two years after the claim accrued
and the two-year statute of limitations period had expired. This denial exhausted plaintiff’s
administrative remedies, See doc. 54, exhibit 2.

8

The Court granted the parties permission to supplement their briefs on the statute of limitations
issue on December 12, 2017, (doc. 71), due to new relevant evidence found during written
discovery and the plaintiff’s deposition taken on December 6, 2017 (doc. 70). The government

6

issue under Federal Rule of Civil Procedure 56.

“If, on a motion under Rule

12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for summary judgment[.]” Old
Nat. Tr. Co., 2013 WL 3944432, at *2, quoting Fed. R. Civ. Pro. 12(d). A court
shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56. Summary judgment will be denied unless the evidence
is such that no reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Lewis v. Downey,
581 F.3d 467, 472 (7th Cir. 2009).
ii. FTCA Statute of Limitations
Under the Federal Tort Claims Act, “[a] tort claim against the United States
shall be forever barred unless it is presented in writing to the appropriate Federal
agency within two years after such claim accrues or 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 present.” See § 28 U.S.C.
2401(b).

“[A]ll that is required to start the statute of limitations running is

knowledge of the injury and that the defendant or an employee of the defendant
acting within the scope of his or her employment may have caused the injury.”
Arteaga v. United States, 711 F.3d 828, 831 (7th Cir. 2013). It is important to
note that accrual of a claim under the FTCA is not contingent upon a plaintiff
filed its supplemental brief December 20, 2017, (doc. 74) and plaintiff filed her supplement on
January 9, 2018 (doc. 79).

7

being aware that a defendant’s negligence caused the injury – simple knowledge of
the “potential existence of a governmental cause is sufficient to start the clock
ticking.” Arroyo v. United States, 656 F.3d 663, 669 (7th Cir. 2011). Here, the
government contends that plaintiff had knowledge of a “government-triggered”
injury taking place shortly after plaintiff gave birth, thus barring plaintiff’s claim
with prejudice by many years. On the other hand, plaintiff maintains she neither
knew, nor had reason to know, that D.M.’s injuries were allegedly caused by Dr.
Jacob during delivery.

Plaintiff argues she did not learn any injuries were

conceivably caused by Dr. Jacob until retaining counsel and filing her state court
complaint in February 2015. For the following reasons, the Court agrees with
defendant that plaintiff’s claims have run afoul of the SOL and thus, are time
barred by the two-year statute of limitations period contained in the FTCA.
iii. Statute of Limitations Accrual Date
a. FTCA Claim Accrual Standard
An FTCA claim accrues when either: (1) plaintiff possesses enough
knowledge to “tip him off” that the government may have caused the injury; or (2)
a reasonable person in a similar position would have known enough to make a
deeper inquiry into whether the government may have caused the injury.

See

Blanche v. United States, 811 F.3d 953, 958 (7th Cir. 2016); Arroyo, 656 F.3d at
669. Here, it is clear that under the objective or subjective standard, plaintiff had
enough knowledge to consider that a doctor-related cause may have created her
child’s brachial plexus injury soon after giving birth. Briefly, plaintiff delivered

8

baby D.M. on or around February 20, 2007 at Alton Memorial Hospital.

Am.

Compl., doc. 45, ¶¶ 3-4. Her delivering doctor, Dr. Saji Jacob, at all relevant
times, was an employee of Southern Illinois Healthcare Foundation, an entity of
the United States of America eligible for FTCA coverage. Id. at ¶¶ 18-19. During
labor, plaintiff suffered a difficult delivery and vacuum-assistance was needed to
aid in the birthing process. While the vacuum was facilitated, D.M. experienced a
shoulder dystocia. Id. at ¶¶ 4-6. Upon delivery, D.M. was immediately diagnosed
with a left clavicle fracture9 and was discharged with instructions to complete
range of motion exercises to help increase mobility in the injured left arm and
shoulder.
While D.M. was born in 2007, plaintiff did not file her original state court
law suit until February 20, 2015, some eight years after D.M’s birth. However,
plaintiff knew her delivery had been vacuum assisted before she was discharged
from the hospital.

Pl’s deposition, 27:4-14.10

Plaintiff signed discharge

instructions educating on the need for physical therapy for D.M.’s left arm,
demonstrating the concrete knowledge of a birth injury.

Id. at 16:1-17:12.

Plaintiff testified at her deposition that within two days of D.M.’s birth she was
already entertaining suspicion of a doctor-related cause to her baby’s injury in
that she felt there “was just something that wasn’t fully told” to her by medical
personnel, id. at 12:9-25, and that by the time she started seeing her pediatrician,
9

The further diagnosis of a brachial plexus injury was made by D.M.’s pediatrician, Dr. Tolentino,
a mere months after birth.
10

All references to plaintiff’s deposition indicate the deposition taking place on December 6, 2017,
unless otherwise noted.

9

Dr. Tolentino, on or around March 20, 2007, plaintiff had begun to suspect that
D.M.’s injury was caused by a medical mistake made by Dr. Jacob. Id. at 37:1324 (“Q: At some point did you begin to suspect that your daughter’s injury was
caused by some medical mistake that Dr. Jacob made during the delivery? A:
Yes. Q: When did you begin to suspect that might be the case? A: When she
started – once I talked to Tolentino and found out all those different therapies the
different things she had to go through.”). Despite these events, even taking as true
plaintiff’s argument that she did not objectively possess enough information to tip
her off that Dr. Jacob may have caused the injury until she first filed suit in 2015,
a reasonable person in her circumstance certainly knew enough to probe deeper
into the cause of injury thus starting the two-year clock to file her complaint.
b. Mere Knowledge of the Potential Existence of a Governmental
Cause is Sufficient to Start the SOL Clock Running
Plaintiff tries to argue that she could not possibly have learned of Dr.
Jacob’s potential negligence and filed suit until she received an expert opinion
that her child’s injury was caused by medical negligence. This is simply not true.
The Seventh Circuit held in Blanche that there is not a mechanical point in time
during litigation that accrual begins. 811 F.3d at 960-61. Instead, accrual begins
when a plaintiff has reason to suspect that the injury suffered relates in some way
to the medical treatment received. Id. at 961, quoting A.Q.C. ex rel. Castillo v.
Untied States, 656 F. 3d 135, 142 (2d Cir. 2011).

In the underlying case,

plaintiff was informed of an injury to her child upon birth prior to discharge from
the hospital, was instructed to take her child to physical therapy for said injury,
10

and knew that her delivering doctor had to use a vacuum to assist labor. Plaintiff
testified at her deposition that she had suspicions of medical personnel almost
immediately, and within 1-2 months, suspected Dr. Jacob’s to be at fault.
Despite plaintiff’s assertions, these underlying facts make her case unlike
E.Y. ex re. Wallace v. United States and Arroyo. In E.Y. ex re. Wallace, plaintiff
gave birth in April 2005 to a child who was diagnosed with diplegic cerebral palsy,
but not until one year later in May 2006. 758 F.3d 861, 864 (7th Cir. 2014).
Shortly after the diagnosis, plaintiff sought legal counsel and signed a retainer in
November 2006. Id. at 864. Medical records were requested and received in
completion by October 2007. Id. The plaintiff filed suit against her prenatal care
providers and the delivering doctor in December 2008. Id. The Seventh Circuit
held that the suit was timely under the FTCA, as the earliest time the plaintiff had
adequate information to tip a reasonable person off to inquire whether her
medical providers caused the child’s injury, was when she received the pertinent
medical records. Id. at 868. In Arroyo, a newborn suffered an infection passed
by the mother’s blood during delivery due to the mother not receiving certain
diagnostic tests typically performed in the last month of pregnancy as the baby
came weeks premature. 656 F.3d at 665. The mother did not learn that these
tests were protocol under giving birth to her second child and seeing an attorney
advertisement on the television stating that the type of injuries sustained by her
first child could be due to the negligence of doctors. Id. at 666. The court held
that the FTCA claims did not accrue until the birth of the second child, as a

11

reasonable person did not have reason to believe until that point that any
negligent act could have caused the baby’s infection. Id. at 670-71.
“When determining the accrual date of a plaintiff’s FTCA malpractice claim,
courts must decide when the plaintiff knew enough (or should have known
enough) to suspect that their injury had a doctor-related cause… accrual does not
wait until the plaintiff learns that their injury was caused by a doctor’s negligence”
id. at 673; “An individual does not need to have reason to believe that the relevant
governmental conduct was negligent; mere knowledge of the potential existence of
a governmental cause is sufficient to start the clock ticking.” Id. at 669. Unlike
the cases plaintiff cites, plaintiff received a diagnosis almost immediately upon
birth, not one year later as in E.Y. ex re. Wallace.

Additionally, plaintiff was

aware of the vacuum-assistance in her delivery – she did not need medical records
to either determine or to learn about any source of potential medical negligence;
nor did she need any advanced medical degree or knowledge to understand that
by its very nature, the vacuum used during delivery could contribute to cause, or
solely cause, the shoulder dystocia which led to the clavicle fracture and resulting
nerve damage. However, even if she did need medical records to rely on, she is
out of luck in arguing caselaw that held no claim accrual until attorneys consulted
and records received, as plaintiff indeed requested medical records numerous
times within the first two years from D.M.’s birth.
By June 2007, 4 months after D.M.’s birth, plaintiff had already sought out
legal representation for a lawsuit related to D.M.’s arm/shoulder injury. On June

12

4, 2007, Alton Women’s Health Center – the branch of Southern Illinois
Healthcare Foundation where plaintiff was seen by Dr. Jacob – received a request
for medical records on plaintiff’s behalf from the law firm of Brown & Crouppen.
And, on October 6, 2008, Dr. Jacob received medical record requests from a
separate attorney on behalf of plaintiff, Mr. Jonathon B. Fleisher, of Karlin &
Fleisher, L.L.C.

It is difficult for the Court to imagine why plaintiff would be

consulting with multiple law firms and requesting medical records if not for the
reason that she suspected a doctor-related cause to D.M.’s birth injury. As stated
above, plaintiff had beliefs that Dr. Jacob was at fault as early as March 2007,
and she further stated at her deposition that she suspected she had a lawsuit
against Dr. Jacob as early as 2007 or 2008. Pl.’s depo, 47:16-19. It is very clear
that not only would a reasonable person “armed with such knowledge . . . be able
to discover within the statutory limitations period the rest of the facts needed for
drafting a complaint that will withstand a motion to dismiss” (Arteaga, 711 F.3d
at 832) but that a reasonably diligent person, in the tort claimant’s position,
“reacting to any suspicious circumstances of which he might have been aware
would have discovered the government cause[.] Id. at 831.
c. A Reasonable Person in Plaintiff’s Position Possessed Enough
Knowledge to Trigger Running of the SOL
The Court is cognizant of plaintiff’s argument that there can be “ghouling
consequences” that stem from a rule that the law requires reasonable persons
who suffer injuries under the care of medical professionals to always attribute
those injuries to the care received.
13

Doc. 79, pg. 2, citing Drazan v. United

States, 762 F.2d 56, 59 (7th Cir. 1985) and Arroyo, 656 F.3d at 671-72. As such,
that is not a principle this Court is instituting here. However, the underlying facts
of this case demonstrate that a reasonable person in this particular plaintiff’s
position possessed enough knowledge to start the SOL running. Unlike the cases
distinguished supra, the undersigned is inclined to liken the matter to Arteaga
and Blanche. In Arteaga, the mother of a child injured at birth brought claims
under the FTCA.

Like D.M., this baby suffered a shoulder dystocia during

delivery in July 2004, and nerves in the shoulder were injured resulting in a
brachial plexus injury. 711 F.3d at 830. A few months later, the mother obtained
medical records pertinent to the birth and consulted with an attorney. The initial
attorney recommended against suing, just like the case at bar. Id. Fifteen months
later, the mother consulted another attorney who agreed to represent her but
withdrew some 16 months later. Two attorneys later and the mother finally had
retained counsel and filed suit in March 2010, six years after the birth of her
child. Id. The Seventh Circuit Court of Appeals held the FTCA claim time-barred
as the claim accrued shortly after birth since the mother had suspected early on
that the injury could have been preventable, had obtained medical records, and
had consulted with attorneys.11 Id. at 831. Because of this, the mother “made her
herself subject to the ancillary principle that the statute of limitations begins to
run not only when the prospective plaintiff discovers who caused the injury, but

11

The information and circumstances in Arteaga surrounding attorney consultations and lag
between search for counsel and the retaining of counsel very much mirror those in the underlying
case and lay to rest any argument that the time it took to find representation stalled or tolled the
statute of limitations.

14

also when a reasonably diligent person (in the tort claimant’s position) reacting to
any suspicious circumstances of which he might have been aware would have
discovered the government cause.” Id (internal quotations and citations omitted).
The facts of the case at bar fit squarely within those of Arteaga. They also
square away within the fact pattern of Blanche, in which the plaintiff suffered a
difficult delivery resulting in a brachial plexus injury to her infant. 811 F.3d at
956. Upon birth, the child had to be taken to the Intensive Care Unit where her
right arm was placed in a splint. Id. Upon discharge, the mother was informed of
the baby’s diagnosis of a brachial plexus injury and understood that diagnosis as
the reason for the child needing the splint. Id. Plaintiff quickly consulted with an
attorney one to two weeks after delivering but did not retain him, id., and did not
seek another attorney for almost a year, whom she retained but who did not file
suit until another year had past. Id. at 956-57. The Seventh Circuit held that
plaintiff’s FTCA claim was time-barred as a “reasonable person under the
circumstances would have had enough information to inquire further into whether
[the delivering doctor] caused” the infant’s injury. Id. at 959. The facts in the
present case align with Blanche, in that plaintiff also suffered a difficult delivery
in which vacuum assistance was needed, plaintiff was informed of an injury to
D.M. by discharge with directions to perform range of motion exercises, and
plaintiff was also suspicious early on and consulted with attorneys about her case.
A reasonable person in her position had adequate information to probe deeper
into the potential government-cause.

15

d. Plaintiff Did Not Diligently Search Out a Medical Opinion as to
the Cause of D.M.’s Injury
The Court would also like to note that the present case is distinguishable
from those in which the medical science landscape on causation had changed over
time, tolling the SOL period, or, one in which a plaintiff diligently searches for an
expert opinion tying their injuries to medical negligence but could not find one
until time passes, thus tolling the SOL. Indeed here, the record demonstrates
that plaintiff never sought out any medical opinion as to the cause of D.M.’s injury
despite having beliefs that a mistake by Dr. Jacob was made and that she wasn’t
being told the full story of her infant’s injury. See e.g. Pl. depo Aug. 31, 2016,
94:25-95:18, stating that in conversations with Dr. Tolentino, D.M.’s pediatrician,
they never spoke about what could have caused the birth injury; Pl. depo, 36:825, never asked nor discussed with D.M.’s surgeon, Dr. Nath, the possible causes
of D.M.’s injury. Based on plaintiff’s knowledge of her delivery, her suspicions of
Dr. Jacob, and her consultations with attorneys, it is glaring that she never asked
for a causal opinion from any of the treating physicians she took D.M. to for care.
This takes the case of the realm of one in which the SOL does not start to
run on a diligent plaintiff until medical science has caught up with their
suspicions of doctor-related causation. See e.g. Stoleson v. U.S., 629 F.2d 1265,
1270 (7th Cir. 1980) (SOL clock did not run until medical science confirmed the
potential for doctor-related cause when plaintiff had the “presence of mind to seek
professional advice from her physicians and BAAP’s own physician” and
elsewhere until she could garner an opinion on causation to her favor.) Here, it
16

appears all plaintiff had to do was ask to receive a causal opinion. Even in Dr.
Jacob’s deposition, while stating that it is possible for a brachial plexus injury to
have multiple contributors, he testified that he did tell plaintiff that D.M.’s clavicle
fracture most likely occurred when he and the delivering team were delivering the
problematic posterior shoulder. Dr. Jacob depo, 176:20-178:9. The posterior
shoulder/arm developed the dystocia when Dr. Jacob was performing vacuum
assisted maneuvers, (am. compl., doc. 45, ¶ 5), and consequently, is the same
shoulder/arm diagnosed with the more serious brachial plexus injury a mere few
months later. Plaintiff should not be rewarded for standing passively by when she
had all the channels available to confirm the possibility of doctor-related
causation and draft a complaint able to withstand early dismissal.
e. Private Actor vs. Governmental Actor
Finally, the Court would like to address plaintiff’s argument that some of
her early concerns regarding doctor-related causation as to D.M.’s injuries were
directed only to Alton Memorial Hospital, a private actor.

Pl.’s Supplemental

Brief, Doc. 79, pgs. 7-10. This contention is a swing and a miss.

In her brief,

plaintiff tries to twist her answer to a deposition question to make it appear she
was responding only as to Alton Memorial and its staff: Q: Did you feel at the
time, I’m talking about while you were still at Alton Memorial Hospital, before you
and your daughter were discharged, did you feel at that time like your daughter’s
arm might have a more serious problem than the medical people were indicating
to you? A: Yeah, I felt like it was just something that wasn’t fully told.” Pl’s depo,

17

12:9-16. It is clear that plaintiff is answering the question as to her time spent at
Alton Memorial, which is where Dr. Jacob performed her delivery and where she
recovered prior to discharge. Nothing in the answer indicates plaintiff only had
concerns as to the private actor, Alton Memorial Hospital, as opposed to concerns
against Dr. Jacob, the government actor.
Plaintiff further makes arguments to support that the SOL for an FTCA
claim does not run simply from knowledge that there is some cause to an injury,
but rather from knowledge of a governmental cause. The Court does not dispute
this. Rather, the Court is disinclined to believe that plaintiff’s early concerns of
medical negligence were split between Alton Memorial and Dr. Jacob. As stated
numerous times supra, plaintiff suspected Dr. Jacob made a mistake within
months of giving birth. Pl. Depo., 37:13-24. Additionally, even if plaintiff’s beliefs
or knowledge could be compartmentalized between the two medical entities,
“when a person suspects, or a reasonable person would suspect, that her injury
was caused by negligent medical care, claims regarding other doctor-related
causes of that injury that share a time and place with the injury’s suspected cause
also accrue.”

Blanche, 811 F.3d at 958.

The negligence alleged by plaintiff

occurred during her labor and delivery. Plaintiff cannot try to distinguish that
different sources of medical-related causes occurred at separate times or places
as she has already argued for permissive joinder stating that the United States
could be joined as a party to her amended complaint for the specific reason that
the events arose out of the same transaction or occurrence. Pl.’s Response, doc.

18

56, pg. 6. Accordingly, the Court finds no merit that plaintiff was aware of the
potential liability of a private actor shortly after birth of D.M., but not of the
governmental actor, Dr. Jacob.
III. CONCLUSION
Based on the foregoing, plaintiff’s claim under the FTCA accrued sometime
within the first year after D.M. was born. As the original law suit was filed at least
five years past the two-year limitations period, it is not important to discern the
exact moment of accrual as it does not alter the outcome that plaintiff’s claim
against the United States is time-barred - plaintiff has failed to commence an
action prior to the running of the applicable statute of limitations. Accordingly,
the government’s Motion to Dismiss Plaintiff’s First Amended Complaint, or in the
alternative, for Summary Judgment (doc. 54) is GRANTED on the grounds that
plaintiff’s claim runs afoul of the limitations period contained in the FTCA. The
Court finds in favor of defendant, United States of America and against plaintiff,
Kyna Mitchell. The Clerk of the Court shall enter judgment accordingly at the
close of the case.
IT IS SO ORDERED.

Judge Herndon
2018.03.06
11:34:03 -06'00'
United States District Judge

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