PW et al v. United States of America et al
Filing
37
OPINION AND ORDER: The Court GRANTS the Defendants Motion to Dismiss for Failure to State a Claim or Alternatively Summary Judgment 21 . The Court also DENIES the Plaintiffs Motion for Hearing on the Defendants Motion to Dismiss for Failure to State a Claim or Alternatively Summary Judgment 25 . The Clerk will enter judgment in favor of the Defendants and against the Plaintiffs. Signed by Chief Judge Theresa L Springmann on 9/5/2019. (shk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
PW, a minor, by DOMINQUE
WOODSON, his mother and guardian,
and DOMINQUE WOODSON,
individually,
Plaintiffs,
v.
CAUSE NO. 2:17-CV-407-TLS
UNITED STATES OF AMERICA and
ANONYMOUS HOSPITAL,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendant United States of America’s Motion to
Dismiss for Failure to State a Claim or Alternatively Summary Judgment [ECF No. 21] in this
action brought by Plaintiff Dominque Woodson individually and on behalf of her minor son,
Plaintiff P.W. The Plaintiffs filed a response [ECF No. 26] on May 31, 2018. On June 28, 2018,
the Defendant filed a reply [ECF No. 30]. Lastly, on July 3, 2018, the Plaintiffs filed a sur-reply
[ECF No. 32]. For the reasons stated below, the Court GRANTS the Defendant’s Motion to
Dismiss for Failure to State a Claim or Alternatively Summary Judgment [ECF No. 21].
STATEMENT OF FACTS
The central question presented in the Defendant’s motion is whether the statute of
limitations for the Plaintiffs’ Federal Tort Claims Act (“FTCA”) bars the Plaintiffs from
recovering for injuries that occurred during Dr. Keith Ramsey’s delivery of Ms. Woodson’s son,
P.W., on December 7, 2013.
A.
Dr. Ramsey and NorthShore Health Centers
Prior to August 2005, Dr. Ramsey was in private practice in the fields of obstetrics and
gynecology. In August 2005, Dr. Ramsey began his employment with NorthShore Health
Centers (“NorthShore”). When Dr. Ramsey started his employment with NorthShore, he limited
his private practice to gynecology. He ceased delivering babies through his private practice. Pls.’
Resp. to Mot. to Dismiss or Summ. J., Ex. E, Dr. Ramsey Dep., 14–16, 62–64, ECF No. 26–5.
NorthShore is deemed eligible for FTCA malpractice coverage and has been so at all
times relevant to underlying facts of this action. See Def.’s Mem in Supp. of Mot. to Dismiss or
Summ. J., Ex. H, Hicks Decl., ¶¶ 6, 8, ECF No. 22-8. Both NorthShore and Dr. Ramsey, as a
NorthShore employee, are characterized as employees of the United States with respect to any
tort actions seeking money damages for personal injuries resulting from alleged medical
negligence. See id.
B.
December 7, 2013 Delivery of P.W.
During her pregnancy, Ms. Woodson was treated by Dr. Ramsey at NorthShore. While
providing Ms. Woodson prenatal treatment, Dr. Ramsey informed Ms. Woodson that her baby
was large and that he would likely need to perform a C-section at the time of delivery.
On December 7, 2013, Ms. Woodson went to Anonymous Hospital to give birth. Ms.
Woodson described the delivery as “very traumatic.” Pls.’ Resp. to Motion to Dismiss or Summ.
J., Ex. A, Woodson Aff., ¶ 13 ECF No. 26-1. Despite Ms. Woodson requesting a C-section
during the delivery, a C-section was not performed. At one point during the delivery, P.W. “got
stuck on the way out” and “Dr. Ramsey yanked P.W. out with great force.” Id. at ¶ 13.
When P.W. was born, Ms. Woodson noticed that P.W.’s “left arm just sagged down to
his side” and that he “could not move his left arm at all.” Id. at ¶ 14. Also, “[s]hortly after the
2
delivery,” Ms. Woodson “knew something was wrong with P.W.’s left arm, so [she] asked Dr.
Ramsey what happened to his arm.” Id. at ¶ 15. According to Ms. Woodson, Dr. Ramsey
responded by saying that P.W. “may get better” and he “may grow into it.” Id. at ¶ 15.
C.
Retention of Counsel and Malpractice Claim
After follow-up visits with Dr. Ramsey and other healthcare providers over the course of
the next several months, Ms. Woodson retained Attorney Walter Sandoval on May 30, 2014, to
litigate her and P.W.’s claims against Dr. Ramsey, NorthShore, and Anonymous Hospital. Ms.
Woodson provided Attorney Sandoval with “some records from NorthShore and Anonymous
Hospital.” Pls.’ Resp., Ex. B, Sandoval Aff. ¶5, ECF No. 26-2. According to Attorney Sandoval,
the records he reviewed did not identify NorthShore as a federal clinic, Dr. Ramsey as an
employee of NorthShore, nor Dr. Ramsey as a government employee in any capacity. Id.
After Attorney Sandoval reviewed the records provided by Ms. Woodson, he reviewed
records in the public domain, and still did not learn that Dr. Ramsey was a federal employee or
that NorthShore was a federally funded clinic. Attorney Sandoval reviewed the websites of the
Indiana Department of Insurance (“IDOI”) and the Indiana Patient’s Compensation Fund
(“IPCF”) to determine if Dr. Ramsey was a “qualified” healthcare provider under Indiana’s
Medical Malpractice Act (“Indiana Act”), Ind. Code. § 34-18-1. Sandoval Aff. ¶¶ 6–7. Attorney
Sandoval learned from these websites that Dr. Ramsey was qualified under the Indiana Act.
Moreover, these websites indicated that Dr. Ramsey had been a named defendant in twenty other
complaints filed with the IDOI. Id.
Attorney Sandoval also searched Dr. Ramsey’s independent website, NorthShore’s
website, and the U.S. Public Health Service’s website. Attorney Sandoval attests that “[n]one of
these websites indicated at any time, to [his] knowledge, that Dr. Ramsey was an ‘employee’ of
3
NorthShore, that he was a ‘government,’ or federal employee, or that he could only be sued in
federal court pursuant to the [FTCA].” Id. ¶ 8.1 Furthermore, Attorney Sandoval was unaware
that Dr. Ramsey was an employee of NorthShore, as NorthShore did not list him as an
“employee,” even though it listed him as a “doctor” at NorthShore. Id.
Specifically, regarding Attorney Sandoval’s knowledge of NorthShore’s status as a
federally funded clinic, Attorney Sandoval was unaware of NorthShore’s federal status as
NorthShore’s website did not indicate it was an “FTCA Deemed Facility” when the Plaintiffs
retained him. See id. ¶¶11-12. Importantly, however, the NorthShore website did have a logo on
its webpage, during the relevant time, that reads: “Community Health Center FQHC.”2 See Pls.’
Resp. to Mot. to Dismiss or Summ. J., Ex. C, Kowalski Aff., 3–4, ECF No. 26-3.
On December 18, 2014, the Plaintiffs filed a proposed complaint against Dr. Ramsey and
Anonymous Hospital to the IDOI and the IPCF pursuant the Indiana Act. Under the Indiana Act,
a malpractice action may not be commenced against a qualified healthcare provider until a
proposed complaint has been filed with the IDOI. Ind.Code. §34-18-8-4. On January 1, 2015,
and October 26, 2015, the IDOI informed the Plaintiffs’ counsel that Dr. Ramsey was a qualified
healthcare provider under the Indiana Act when he treated Ms. Woodson. Sandoval Aff. ¶¶ 18,
23. Also, on October 26, 2015, Plaintiffs’ counsel received written notice that IDOI informed Dr.
Ramsey’s insurance carrier, IRMIA, that Dr. Ramsey was a party to the IDOI action. Id. at ¶ 24.3
On December 16, 2015, a little over two years after P.W.’s delivery, Peter Boyles,
counsel for NorthShore, informed Attorney Sandoval that NorthShore is a federal clinic, and that
1
Attorney Sandoval’s affidavit is silent on whether he reviewed these websites to determine if
NorthShore was a federally affiliated health center.
2
FQHC is an abbreviation for Federally Qualified Health Center.
3
Importantly, neither Dr. Ramsey nor Anonymous Hospital could be qualified providers under the
Indiana Act and at the same time be considered federal employees for the purposes of the FTCA in
4
Dr. Ramsey, as an employee of NorthShore, is considered a federal employee. Sandoval Aff. ¶
25. Subsequently, on February 19, 2016, the Plaintiffs, through Attorney Sandoval, filed their
tort claim with the Department of Health and Human Services (“DHHS”) pursuant to 28 U.S.C.
§ 2675(a). Id. at ¶ 27. On May 1, 2017, Attorney Sandoval received DHHS’s written denial of
the Plaintiffs’ tort claim. Id. at ¶ 30. The Plaintiffs’ filed the instant action pursuant to 28 U.S.C.
§ 2675(a) on October 26, 2017. Id. at ¶ 31.
LEGAL STANDARD
The Defendants have moved for dismissal pursuant to the Federal Rule of Civil
Procedure 12(b)(6) or, in the alternative, summary judgment pursuant to Federal Rule of Civil
Procedure 56(a). Therefore, the Court must provide the legal standards for both and determine
the appropriate standard to apply to the instant Motion.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint, not the merits of the case. In considering motions to dismiss for
failure to state a claim, “[courts] construe the complaint in the light most favorable to the
plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in
her favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). In ruling on Rule
12(b)(6) motions to dismiss, courts generally must confine their inquiry to the factual allegations
set forth within the operative complaint. Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661
(7th Cir. 2002). “A plaintiff . . . must provide only enough detail to give the defendant fair notice
of what the claim is and the grounds upon which it rests, and, through his allegations, show that
it is plausible, rather than merely speculative, that he is entitled to relief.” Tamayo, 526 F.3d at
connection with same allegedly negligent medical treatment. See 42 U.S.C. § 1346(b) (bestowing federal
district courts with “exclusive jurisdiction” over FTCA matters).
5
1083 (quotation marks and citations omitted). Although a complaint does not need detailed
factual allegations, it must provide the grounds of the claimant’s entitlement to relief, contain
more than labels, conclusions, or formulaic recitations of the elements of a cause of action, and
allege enough to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). Legal conclusions can provide a complaint’s framework, but unless
well-pleaded factual allegations move the claims from conceivable to plausible, they are
insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679–81 (2009) “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at
679 (quoting Fed. R. Civ. P. 8(a)(2)). Determining whether a complaint states a plausible claim
is context-specific, requiring a court to draw on its experience and common sense. Id. In
addition, a plaintiff can plead himself out of court if it would be necessary to contradict the
complaint in order to prevail on the merits. Tamayo, 526 F.3d at 1086.
When parties seeking dismissal submit documents with their motions to dismiss, courts
can either exclude the documents or convert the motion to dismiss to a motion for summary
judgment. Fed. R. Civ. P. 12(d); Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002); Venture
Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). Under Rule 10(c), a
“copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes.” Fed. R. Civ. P. 10(c).
Here, the Defendant has already moved, in the alternative, for summary judgment under
Rule 56, and the Plaintiffs have responded by framing their arguments within the Rule 56
framework. Additionally, the Plaintiffs have designated their own documents, including
6
deposition testimony. Therefore, the Court will treat the Defendant’s motion as a motion for
summary judgment.
Summary judgment is warranted when “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(a). The non-moving party must marshal and present a court with evidence on which a
reasonable jury could rely to find in their favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d
651, 654 (7th Cir. 2010). A court must deny a motion for summary judgment when the
nonmoving party presents admissible evidence that creates a genuine issue of material fact.
Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 731 (7th Cir. 2011). A court’s role in deciding a
motion for summary judgment “is not to sift through the evidence, pondering the nuances and
inconsistencies, and decide whom to believe. The court has one task and one task only: to decide,
based on the evidence of record, whether there is any material dispute of fact that requires a
trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Facts that are outcome
determinative under the applicable law are material for summary judgment purposes. Smith ex
rel. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention that an issue
of material fact exists is insufficient to create a factual dispute, a court must construe all facts in
a light most favorable to the nonmoving party, view all reasonable inferences in that party’s
favor, Bellaver v. Quanex Corp., 200 F.3d 485, 491–92 (7th Cir. 2000), and avoid “the
temptation to decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337
F.3d 767, 770 (7th Cir. 2003). Additionally, a court is not “obliged to research and construct
legal arguments for parties, especially when they are represented by counsel.” Nelson v.
Napolitano, 657 F.3d 586, 590 (7th Cir. 2011).
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ANALYSIS
The United States argues that the Plaintiffs cannot recover under the FTCA because the
Plaintiffs filed their claims after the expiration of the FTCA’s two-year statute of limitations
period. The Plaintiffs counter with several arguments as to why the Court should find that the
FTCA’s statute of limitations does not bar the present action. First, the Plaintiffs appear to argue
that the date of accrual was not the date of the delivery (December 7, 2013) but the date that
Plaintiffs’ counsel, Attorney Sandoval, learned that the injuries in question were the result of a
“government cause”—and if not that date (December 16, 2015), then the date Ms. Woodson
retained Attorney Sandoval (May 30, 2014). Second, the Plaintiffs assert that if the date of
accrual was the date of P.W.’s delivery, then the “Savings Clause” of the Westfall Act, 18 U.S.C.
§ 2679, prevents dismissal on statute of limitations grounds. Lastly, Plaintiffs argue that the
doctrines of equitable estoppel and equitable tolling apply such that the statute of limitations only
began to run when Attorney Sandoval discovered that Dr. Ramsey was a federal employee.
A.
FTCA
Under the FTCA, district courts have “exclusive jurisdiction of civil actions on claims
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 this office or employment.” 28 U.S.C. §
1346(b)(1). Such liability arises “under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place where the act or
omission occurred.” Id.
In order to institute an action against the United States under the FTCA, a claimant must
first exhaust her administrative remedies by filing an administrative claim with the appropriate
8
federal agency, 28 U.S.C. § 2675(a), and she must do so within the time provided by the twoyear statute of limitations as set forth in the FTCA. 28 U.S.C. §2401(b). Section 2401(b) requires
that the claimant file an administrative claim within the appropriate federal agency within two
years of the claim accruing and file a complaint in the district court within six months of the
denial of the administrative claim. Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003)
(citing 28 U.S.C. § 2675(a)).
Importantly, an FTCA claim accrues when “(A) an individual knows enough to tip him
off that a government act (or omission) may have caused his injury, or (B) a reasonable person in
the individual’s position would have known enough to prompt a deeper inquiry.” Arroyo v.
United States, 656 F.3d 663, 669 (7th Cir. 2011) (emphasis in original). This standard allows a
claim to accrue when either a plaintiff objectively should have known that a government cause
resulted in an injury or when a plaintiff subjectively knew that a government cause resulted in an
injury. See Blanche v. United States, 811 F.3d 953, 958 (7th Cir. 2016) (noting that the standard
provides for “either a subjective analysis or an objective analysis.”). “Further, medical
malpractice claims [in the FTCA context] do not accrue when the plaintiff knows that her injury
was caused by a doctor. Rather, the accrual date is when the plaintiff has enough information to
suspect, or a reasonable person would suspect, that the injury had a doctor related cause.”
Blanche, 811 F.3d at 958 (internal quotations omitted).
The Plaintiffs appear to argue that date of discovery of the injury should be set at May 30,
2014 (when Ms. Woodson hired Attorney Sandoval), and the date the Plaintiffs discovered that
the injury was the result of a government cause should be set at December 16, 2015 (when
NorthShore’s counsel informed Attorney Sandoval of Dr. Ramsey’s federal employment status).
As will be explained more fully below, the date of the delivery (December 7, 2013) is the proper
9
date to start the running of the FTCA’s statute of limitations, not the potential dates Plaintiffs
offer.
1. Discovery of Injury
The date of the discovery of the injury for an FTCA medical malpractice claim is when a
person suspects, or a reasonable person would suspect, that her injury was caused by negligent
medical care. E.Y. ex rel. Wallace v. United States, 758 F.3d 861, 868 (7th Cir. 2014).
The Seventh Circuit in Blanche v. United States, applied the above standard to a fact
pattern similar to the facts in the instant case. The mother in Blanche endured a “difficult
delivery” when her doctor induced labor as a result of abdominal pain. Blanche, 811 F.3d at 955,
959. During the delivery, the baby was lodged in the birth canal and had to be rushed to the
intensive care unit after she was born. Id. at 955–56. While at the hospital, the mother learned
her daughter was diagnosed with Erb’s Palsy, which involves weakness in the arm as a result of
damage to nerves in the area of the shoulder. Id. at 956. The mother left the hospital with her
daughter’s arm in a splint. Id. Although, the mother met with an attorney shortly thereafter to
discuss filing a malpractice claim, she would ultimately hire a different attorney approximately a
year later to pursue her and her daughter’s malpractice claims. Id.
Similar to the parties in this case, the parties in Blanche disputed the date the injury was
discovered. The district court in Blanche found that the mother had knowledge of the injury near
the time of delivery because, in part, the mother knew that the baby was lodged in the birth canal
during the delivery, that the baby was rushed to the intensive care unit after delivery, and that the
baby was taken home with her arm in a splint. Id. at 959. The Seventh Circuit agreed, reasoning
that “[r]egardless of [the mother’s] subjective beliefs, a reasonable person under the
circumstances would have had enough information to inquire further into whether [the doctor
10
performing the delivery] caused [the newborn’s] injury.” Id. Consequently, the statute of
limitations began to run on the date of the delivery.
Similar to the mother in Blanche, Ms. Woodson also endured a “very traumatic delivery,”
as described in her affidavit. See Woodson Aff., at ¶ 13. In connection with the prenatal care Ms.
Woodson received at NorthShore, Dr. Ramsey informed Ms. Woodson that she would likely
need a C-section to deliver P.W. due to P.W.’s size. Id. at ¶ 8. During the delivery, however, a Csection was not performed despite Ms. Woodson requesting one. Id. at ¶ 10. Ms. Woodson
attested that P.W. “got stuck on the way out” and that Dr. Ramsey “yanked P.W. out with great
force.” Id. at ¶13. She also observed “[s]hortly after the delivery” that “P.W.’s left arm just
sagged down to his side.” Id. at ¶¶14–15. Ms. Woodson explained that she “knew something was
wrong with P.W.’s left arm” and that this prompted her to ask Dr. Ramsey about it. Id. at ¶15.
Dr. Ramsey responded that P.W.’s arm “may get better and [P.W.] may grow into it.” Id.
Based on Ms. Woodson’s own affidavit recounting her harrowing delivery, Ms. Woodson
knew on the date of the delivery that P.W. was stuck in the birth canal and that P.W. needed to
be “yanked” out with great force. Ms. Woodson also knew that she did not receive a C-section
despite being told during her prenatal treatment that a C-section was the preferred course of
action. Finally, shortly after P.W.’s birth, Ms. Woodson observed that P.W.’s left arm “sagged
down his side,” which alerted her to the fact that “something was wrong.” Taking these facts
together, a reasonable person under similar circumstances as Ms. Woodson would have had
enough information to inquire further into whether Dr. Ramsey’s delivery of P.W. caused the
injuries to P.W. and injuries to Ms. Woodson herself shortly after the delivery. Therefore, the
appropriate date to set as discovery of Ms. Woodson’s and P.W.’s injuries is not the date Ms.
Woodson retained Attorney Sandoval but the date of delivery, December 7, 2013.
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2. Discovery of Government Cause
The Court next turns to whether the Plaintiffs knew or had reason to know that the injury
was the result of a government cause. The Plaintiffs argue that the FTCA claim did not accrue
until their counsel learned from NorthShore’s counsel that Dr. Ramsey could be sued for
malpractice only under the FTCA.
With respect to a plaintiff’s knowledge of a government cause for the purposes of the
FTCA’s statute of limitations, the “the statute of limitations begins to run ‘either when the
government cause is known or 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—whichever comes first.’” Arroyo, 656 F.3 at 669 (emphasis in
original) (quoting Drazan v. United States, 762 F.2d 56, 59 (7th Cir. 1985)). Nevertheless, in
Artega v. United States, the Seventh Circuit held that when a prospective plaintiff has knowledge
of an underlying injury, the “prospective plaintiff should 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.” 711 F.3d 828, 831–32 (7th Cir. 2013). The court in Arteaga explained that
whether or not “the defendant is suable only under the Federal Tort Claims Act is one of those
facts” that a plaintiff or plaintiff’s counsel should be able to discover within the statutory period
after the underlying injury is discovered. See id.
Applying Arteaga to this case means that the Plaintiffs cannot prevail on the argument
that the statute of limitations began to run once Attorney Sandoval learned that Dr. Ramsey was
a federal employee. Under Arteaga, whether Dr. Ramsey is suable only under the FTCA is a fact
the Plaintiffs or Plaintiffs’ counsel should have discovered after Ms. Woodson learned or should
have learned of the injuries. That the Plaintiffs and Plaintiffs’ counsel did not discover that Dr.
12
Ramsey was a federal employee until after the statutory limitations period does not save the
Plaintiffs’ FTCA claim.
Thus, the statute of limitation began to run on December 7, 2013, the date of the delivery,
and expired two years later, on December 7, 2015, which in turn is more than two months before
the Plaintiffs filed the FTCA claim with DHHS on February 19, 2016. The Court will therefore
turn to whether any exceptions to the FTCA’s two-year statute of limitations applies to prevent
dismissal of the Plaintiffs’ claim.
B.
The “Savings Clause”—28 U.S.C. § 2679(d)
The Plaintiffs assert that the “Savings Clause” of the Westfall Act should apply to
prevent dismissal of the FTCA claim on statute of limitations grounds.
The Westfall Act provides that a remedy against the United States under the FTCA is
“exclusive of any other civil action or proceeding for money damages by reason of the same
subject matter against the employee whose act or omission gave rise to the claim . . . .” 28 U.S.C.
§ 2679(b)(1). Furthermore, the Westfall Act states that “[a]ny other civil action or proceeding for
money damages arising out of or relating to the same subject matter . . . is precluded without
regard to when the act or omission occurred.” Id. Subsection (d) provides for the automatic
substitution of the United States as a party defendant in “any civil action or proceeding
commenced upon such a claim in a United States district court” or in “any civil action or
proceedings commenced upon such a claim in a State court . . . .” Id. §§ 2679(d)(1), (d)(2).
The FTCA contains a savings clause to prevent the dismissal of an action where the
United States is substituted as a party after the limitations period has run. Id. § 2679(d)(5). The
Savings Clause provides:
Whenever an action or proceeding in which the United States is
substituted as the party defendant under this subsection is
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dismissed for failure first to present a claim pursuant to section
2675(a) of this title, such a 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.
Id.
It is undisputed that the Plaintiffs filed the action before this Court within six months of
DHHS’s denial of the administrative claim. The issue in dispute, however, is whether the
Plaintiffs can be deemed to have filed their administrative law claim within the two-year
limitations period when the Plaintiffs filed the underlying malpractice claim with a state agency
(IDOI), rather than a federal agency (DHHS) or state court.
The Plaintiffs contend that 28 U.S.C. § 2679(d)(5) is satisfied because the Plaintiffs
initiated a malpractice claim with IDOI on December 18, 2014, which is well within two years
from the date of the delivery. The Plaintiffs acknowledge that the IDOI claim is still pending,
and therefore the second requirement of the savings clause cannot be met—the requirement that
a claim be presented to the appropriate federal agency within 60 days after the dismissal of the
civil action. The Plaintiffs propose circumventing this second element by suggesting that the
Court find that the Plaintiffs have “substantially complied” with the Savings Clause.
The Plaintiffs do not provide any authority suggesting that a court can apply the full force
of the Savings Clause after a finding that a plaintiff has “substantially complied” with the
requirements of the Savings Clause. Aside from that omission, the Defendant counters that the
Plaintiffs cannot avail themselves of the Saving Clause’s protection because the “underlying civil
action” referred to in § 2679(d)(5)(A) does not encompass administrative claims filed with state
agencies. Instead, the “underlying civil action” referred to in the savings clause is limited to civil
14
actions in federal district court and civil actions in state court. To support their argument, the
Defendant cites to Adkins v. United States, where Chief Judge Magnus-Stinson, sitting in the
Southern District of Indiana, rejected a plaintiff’s argument that the Saving Clause’s reference to
“underlying civil action” includes proceedings before state agencies. No. 1:10–cv–0018–JMS–
DML, 2011 WL 666713, at *3–4 (S.D. Ind. Feb. 14, 2011).
This Court finds Chief Judge Magnus-Stinson’s decision in Adkins persuasive—
particularly, in the absence of binding authority on point. The court in Adkins invoked the wellknown canon of statutory construction that provides that “statutory language cannot be construed
in a vacuum” and that “the words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.” Id. at *4 (quoting Davis v. Mich. Dep’t of Treas.,
489 U.S. 803, 809 (1989)). Accordingly, looking beyond subsection (d)(5) of the Westfall Act,
subsection (d)(1) provides for the automatic substitution of the United States as a party in “any
civil action or proceeding commenced upon such a claim in a United States District Court.”
Subsection (d)(2) provides for the automatic substitution of the United States as a party in “any
civil action or proceeding commenced in a State court.” It would stand to reason that Congress
would not earlier in a statute reference two types of civil actions—those before a federal district
court and those before a state court—and then in a later subsection, when referencing civil
actions, intend to broaden the scope of civil actions to also encompass proceedings before state
administrative agencies. In other words, “it is clear that Congress did not intend to introduce a
new form of civil action in § 2679(d)(5), different from those civil actions referred to in
subsections (1) and (2) of the same statutory section.” Adkins, 2011 WL 666713, at *4.
Importantly, as the court in Adkins highlights, the Supreme Court has instructed courts
that the FTCA is to be construed narrowly and strictly. Id. (citing Irwin v. Dep’t of Veterans
15
Affairs, 498 U.S. 89, 94 (1990)). Moreover, the Seventh Circuit has held that “[c]ourts should not
extend the waiver beyond that which Congress intended.” Adkins, 2011 WL 666713, at *4
(internal quotations omitted) (quoting McCall v. United States, 310 F.3d 984, 988 (7th Cir.
2002)). Specifically, in connection to the statute of limitations for an FTCA claim, the burden
rests with the plaintiff to establish an exception to limitations period. See McCall, 310 F.3d at
987.
Taking together that exceptions to the statute of limitations for an FTCA claim are to be
construed narrowly and strictly along with evidence that Congress did not intend “underlying
civil actions” to encompass state administrative proceedings under § 2679(d)(5), this Court finds
that the Savings Clause of the Westfall Act does not apply to the Plaintiffs’ untimely FTCA
claim.
D.
Equitable Estoppel
The Plaintiffs also assert that Dr. Ramsey and NorthShore took affirmative steps to
conceal the fact that the malpractice claim could only be brought under the FTCA.
The Seventh Circuit has clarified that when a defendant is alleged to have taken
“improper steps to delay the filing of the suit beyond the statutory period” then the issue “would
be in the domain not of equitable tolling but equitable estoppel . . . .” Arteaga, 711 F.3d at 833.
One such example of when equitable estoppel would apply in the statute of limitations context
would be when “the defendant took improper steps to delay the filing of the suit beyond the
statutory deadline, as by falsely promising not to plead the statute of limitations.” Id. A court will
look to see whether the defendant’s actions amounted to fraudulent concealment to determine
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whether equitable estoppel applies. See id. (stating that fraudulent concealment is “often used a
synonym for conduct giving rise to [equitable] estoppel.”).
The Plaintiffs contend that Dr. Ramsey and NorthShore deceived the Plaintiffs and
Plaintiffs’ counsel, Attorney Sandoval, into believing that the malpractice action against Dr.
Ramsey was properly filed before the IDOI when in actuality Dr. Ramsey could only be sued
under the FTCA in federal court. The Plaintiffs intimate that Dr. Ramsey had a duty to disclose
information that he was a federal employee in connection with his treatment of Ms. Woodson
and delivery of P.W. because there is a “fiduciary or confidential relationship” between Dr.
Ramsey, a physician, and his patients. Pls.’ Resp. at 16. The Plaintiffs imply that failure to
disclose Dr. Ramsey’s status as a federal employee “results in concealment” that would give rise
to an equitable estoppel argument.
The Seventh Circuit in Arteaga rejected the Plaintiffs’ exact argument. The Arteaga court
confirmed that healthcare providers have no duty to reveal to their patients that they could only
be sued for malpractice under the FTCA. Arteaga, 711 F.3d at 834. “No physician, clinic,
hospital, or other medical provider is required to provide patients with detailed instruction on
how to sue the provider for malpractice.” Id. Hence, the Plaintiffs’ argument that Dr. Ramsey
and NorthShore refraining from disclosing their federal affiliations until after the statute of
limitations expired amounts to fraudulent concealment pursuant is unconvincing.
The Plaintiffs also allege that that NorthShore and Dr. Ramsey, acting on behalf of the
United States, “intentionally and willfully kept important employment documentation away from
the Plaintiffs and their counsel.” Pls.’ Resp. at 16. In support of their allegations, the Plaintiffs
note that Attorney Sandoval only received Dr. Ramsey’s part-time employment agreement with
NorthShore, NorthShore’s W-2 statement, and Dr. Ramsey’s employment declaration after the
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Plaintiffs filed their tort notices with DHHS on February 19, 2016, which was after the statute of
limitations expired. Pls.’ Resp. at 17 (citing Sandoval Aff. ¶ 39).
The Court finds, however, that the Plaintiffs have not established that the Defendants
fraudulently withheld the documents. As stated above, neither NorthShore nor Dr. Ramsey had a
duty to aid the Plaintiffs in suing them in the correct forum. Additionally, the Plaintiffs have not
submitted any evidence demonstrating that Dr. Ramsey and NorthShore had a duty to disclose
the documents listed above pursuant to some court order or other obligation—apart from the
obligations a doctor owes patients in the medical treatment context. Also problematic for the
Plaintiffs’ argument is the fact that the Plaintiffs have not pointed this Court to any evidence that
Attorney Sandoval even requested such documentation before the expiration of the statute of
limitations. Hence, the Plaintiffs’ equitable estoppel argument does not save the untimely FTCA
claim.
C.
Equitable Tolling
The Plaintiffs argue that the doctrine of equitable tolling applies such that the statute of
limitations for the Plaintiffs’ FTCA claim was tolled until their counsel, Attorney Sandoval,
learned that Dr. Ramsey was a federal employee.
“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
circumstances stood in his way.” Credit Suisse Secs. (USA) LLC. v. Simmonds, 566 U.S. 221,
227 (2012) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (emphasis omitted).
1. Diligence
The Plaintiffs offer several arguments to demonstrate that the Plaintiffs—in this instance
meaning the Plaintiff’s counsel, Attorney Sandoval—diligently pursued the malpractice claim.
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As evidence of their diligence in pursuing the claim, the Plaintiffs point to evidence that
Attorney Sandoval examined the websites of Dr. Ramsey, NorthShore, Anonymous Hospital, the
Indiana Secretary of State, and the U.S. Public Health Services. Sandoval Aff. ¶ 8. Attorney
Sandoval attests: “None of these websites indicated at any time, to my knowledge, that Dr.
Ramsey was an ‘employee’ of NorthShore, that he was a ‘government’ or federal employee, or
that he could only be sued in federal court pursuant to the Federal Tort Claims Act (‘FTCA’).”
Id. In his affidavit, Attorney Sandoval conceded that “although NorthShore’s website listed [Dr.
Ramsey] as a doctor, it did not list him as an employee.” Id.
Again, the Court must reject the Plaintiffs’ argument in light of Seventh Circuit case law.
The Seventh Circuit noted in Blanche that “the Public Health Service operates a website that
identifies all health centers that receive federal funds and thus can only be sued under the
FTCA.” Blanche, 811 F.3d at 962 (citing Arteaga, 711 F.3d at 834). Counsel for plaintiffs cannot
claim they did know that they could only sue under the FTCA because “[m]embers of the
medical malpractice bar should know enough to consult the [Public Health Services Website]
when approached by a prospective client.” Arteaga, 711 F.3d at 834. “Medical malpractice
attorneys have an obligation upon being retained by a new client to research the possible
defendants at issue. This research involves examining whether the possible defendants are
federally affiliated, and thus can only be sued under the FTCA.” Blanche, 811 F.3d at 962.
The fact that Attorney Sandoval could not determine that Dr. Ramsey was a federal
employee only suable under the FTCA after researching the relevant websites, including the U.S.
Public Health Services website, does not demonstrate that the Plaintiff diligently pursued the
malpractice claim. Attorney Sandoval attests that examining the websites in question did not
enlighten him as to Dr. Ramsey’s federal status. What is missing from Attorney Sandoval’s
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affidavit is any evidence indicating whether his “research involve[d] examining whether the
possible defendants are federally affiliated.” See Blanche, 811 F.3d at 962. In other words, even
if website research failed to alert Attorney Sandoval that Dr. Ramsey was only suable under the
FTCA, there is still no evidence showing that Attorney Sandoval researched whether
NorthShore, a possible defendant in the case, was federally affiliated by searching for it in the
U.S. Public Health Services website.
This apparent oversight is relevant because it would stand to reason that if an attorney
were to be diligently pursuing a malpractice claim then they would search the U.S. Public Health
Services website to determine the possible federal status of a health center where the plaintiff
received her prenatal care. After determining that the health center providing the prenatal care
was federally affiliated (and therefore suable only under the FTCA), a diligent attorney would be
tipped off to investigate the federal status of any doctor who provided the plaintiff prenatal
treatment and delivered the baby.
If Attorney Sandoval had made the effort to determine whether NorthShore was federally
affiliated by examining the U.S. Public Health Services website, instead of singularly focusing
on whether Dr. Ramsey was federally affiliated by examining the U.S. Public Health Services
website, Attorney Sandoval would find that NorthShore was federally affiliated. This
information, coupled with Attorney Sandoval knowing that NorthShore’s website listed Dr.
Ramsey as a doctor at the health center, would have alerted Attorney Sandoval that Dr. Ramsey
was possibly a federal employee suable only under the FTCA.
Relatedly, the Plaintiffs argue that Attorney Sandoval was unaware of NorthShore’s
federal status because the health center’s website did not indicate that it was an “FTCA Deemed
Facility.” Aside from there being no evidence that Attorney Sandoval examined the U.S. Public
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Health Services website to determine specifically whether NorthShore was federally affiliated,
NorthShore’s website did include a logo that reads “Community Health Center FQHC” during
the statute of limitations period. See Pls.’ Ex. C at 3, ECF No. 26–3. In Arteaga, the Seventh
Circuit found that the fact that the health center in question indicated it was a Federally Qualified
Health Center on its website weighed against the plaintiff’s argument that plaintiff’s counsel
could not have uncovered the federal status of the health center. Arteaga, 711 F.3d at 833–34.
The court did not require that a federally funded health center indicate that it was covered under
the FTCA to give plaintiffs notice that it was only suable under the FTCA. Id. at 834. Thus,
NorthShore’s website did not need to indicate that it was an “FTCA Deemed Facility.” The
inclusion of information indicating that NorthShore was an FQHC should have alerted an
attorney diligently pursuing a malpractice claim that the health center was suable only under the
FTCA.
2. Extraordinary Circumstances
The Plaintiffs assert that extraordinary circumstances prevented the Plaintiffs and their
counsel from filing the FTCA claim within the limitations period—the second element of an
equitable tolling defense. According to the Plaintiffs, the extraordinary circumstances preventing
the filing of FTCA claim arose out of NorthShore and Dr. Ramsey “actively avoid[ing]
participating in any way in the IDOI proceeding filed against Dr. Ramsey for approximately one
year.” Pls.’ Resp. at 19. The Plaintiffs provide the following facts to bolster their claim. First, Dr.
Ramsey testified at his deposition that that he “handed [ ] off” the original and amended
complaints filed with the IDOI to NorthShore. Pls.’ Resp. at 19. Next, Dr. Ramsey admitted that
he was instructed by the U.S. Attorney and NorthShore to do nothing with respect to the IDOI
complaints filed against him. Id. Neither NorthShore nor Dr. Ramsey informed Attorney
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Sandoval of the true nature of Dr. Ramsey’s employment, and if they had done so, the Plaintiffs
could have filed their FTCA claim with DHHS within the statute of limitations period.
As explained above in the equitable estoppel section, healthcare providers such as
NorthShore and Dr. Ramsey have no obligation or duty to provide the Plaintiffs’ with
information that will help their counsel select the correct forum in which to sue them. Although
the Plaintiffs repeatedly emphasize how Dr. Ramsey did not participate in the IDOI proceeding,
no evidence is presented to demonstrate that he, NorthShore, or their counsel violated any
administrative or court rules or otherwise disobeyed some administrative or court order to
disclose information or produce documents. Dr. Ramsey’s nonparticipation, as the Plaintiffs’
characterize it, in the IDOI proceeding cannot be a basis for this Court to find some
extraordinary circumstance existed to prevent Plaintiffs or their counsel from filing their FTCA
claim within the statutory period.
Therefore, because the Plaintiffs have not met the diligence and extraordinary
circumstances elements, the Plaintiffs’ FTCA claim filed after the limitations period is not saved
by the doctrine of equitable tolling.
CONCLUSION
For these reasons, the Court GRANTS the Defendant’s Motion to Dismiss for Failure to
State a Claim or Alternatively Summary Judgment [ECF No. 21]. The Court also DENIES the
Plaintiffs’ Motion for Hearing on the Defendant’s Motion to Dismiss for Failure to State a Claim
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or Alternatively Summary Judgment [ECF No. 25]. The Clerk will enter judgment in favor of the
Defendants and against the Plaintiffs.
SO ORDERED on September 5, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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