Taylor v. USA

Filing 13

MEMORANDUM OPINION & ORDER: (1) The United States' Motion to Dismiss [DE 5 ] pursuant to Rule 12(b)(6) is GRANTED because Plaintiff Charles Taylor's claim is untimely; (2) This matter is DISMISSED WITH PREJUDICE; (3) This action is STRICKEN from the Court's active docket; and (4) Judgment SHALL be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge Joseph M. Hood on 1/11/22.(JLM)cc: COR

Case: 5:21-cv-00142-JMH Doc #: 13 Filed: 01/11/22 Page: 1 of 7 - Page ID#: 94

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CHARLES TAYLOR,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No.
5:21-cv-142-JMH
MEMORANDUM
OPINION AND ORDER

***
This matter comes before the Court on the United States’
Motion to Dismiss, Alternatively, Motion for Summary Judgment [DE
5] pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56,
respectively. For the following reasons, the Court will grant the
United States’ Motion to Dismiss [DE 5] pursuant to Rule 12(b)(6)
because Plaintiff Charles Taylor’s claim is untimely.
I. DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) provides that a
complaint may be attacked for failure “to state a claim upon which
relief can be granted.” To survive a Rule 12(b)(6) motion to
dismiss, a complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A motion
to dismiss is properly granted if it is beyond doubt that no set

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of facts would entitle the petitioner to relief on his claims.”
Computer Leasco, Inc. v. NTP, Inc., 194 F. App’x 328, 333 (6th
Cir. 2006). When considering a Rule 12(b)(6) motion to dismiss,
the court will presume that all the factual allegations in the
complaint are true and draw all reasonable inferences in favor of
the nonmoving party. Total Benefits Planning Agency v. Anthem Blue
Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing
Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir.
1983)). “The court need not, however, accept unwarranted factual
inferences.” Id. (citing Morgan v. Church’s Fried Chicken, 829
F.2d 10, 12 (6th Cir. 1987)).
In the present case, Taylor brings this action under the
Federal Torts Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 1402,
2401(b), 2402, 2671-2680, alleging that an employee of the United
States, specifically, a surgeon at the Lexington Veterans Affairs
Medical Center (“VA”), performed a prostatectomy on him without
his informed consent that resulted in irreparable harm. [DE 1].
While Taylor attempts to characterize his claim as one of lack of
informed

consent

regarding

his

permanent

sexual

dysfunction

resulting from the surgery and not the surgery itself, see [DE 1;
DE 10], Taylor’s administrative claim was clearly presented as a
claim involving lack of consent for the removal of his prostate.
Specifically, Taylor alleged in his administrative claim that
“[t]here was NEVER any discussion about removing my prostate or
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the consequences of removing my prostate!” [DE 5-1, at 6]. He
further alleged that he “was never consulted about having [his]
prostate removed] and had he known the extent of the harm, he would
not have consented to the surgery.” Id. at 7.
The

distinct

nature

of

Taylor’s

allegation

is

important

because the FTCA requires that claimants bring their claim to the
appropriate

federal

agency

within

two

years

after

the

claim

accrues. See 28 U.S.C. § 2401(b). In cases brought under the FTCA,
“a claim accrues when a plaintiff possesses enough information
with respect to h[is] injury that, ‘had [he] sought out independent
legal and [expert] advice at that point, [he] should have been
able to determine in the two-year period whether to file an
administrative claim.’” Hertz v. United States, 560 F.3d 616, 618
(6th Cir. 2009).
Here, Taylor originally submitted his administrative claim on
July 29, 2019, and his surgery was performed on September 29, 2016.
See [DE 5-1]. In response to the United States’ Motion [DE 5],
Taylor argues, “The surgery itself, however, is not the basis of
[Taylor’s] claim—instead, [Taylor’s] claim is that he was not
reasonably informed prior to consenting the surgery that he would
likely suffer severe and permanent sexual dysfunction.” [DE 10, at
3]. Taylor supports his argument by citing his administrative
claim, which states that after the surgery he “‘was unaware what
the surgery had done to [him].’” Id. quoting [DE 5-1, at 6].
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While there is no doubt that Taylor originally claimed he was
not properly informed about the consequences of his surgery, there
is equal certainty that the administrative claim alleged he did
not consent to the removal of his prostate. Accordingly, Taylor’s
allegation that he was unaware that the removal of his prostate
had caused him permanent sexual dysfunction until an October 2018
meeting with another doctor at the VA is inconsequential to the
determination of the timeliness of his claim because the clock
began to run on the date of his surgery in September 2016, as the
alleged harm was not only the consequences of the surgery, but
also that the removal of his prostate took place without his
consent. Therefore, Taylor’s July 29, 2019, administrative claim
was well past the two-year deadline.
In the alternative to his date of accrual argument, Taylor
argues that the “continuous course of treatment doctrine” apples
and that his claim is timely because he “continued to treat at the
local VA for urologic care of his prostate condition through at
least October 2018 (in fact, he continues to treat at the VA to
this day).” [DE 10, at 4]. To support this argument, Taylor cites
to only one federal case: Cole v. Growse, No. 07-CV-61-KSF, 2008
WL 696355, at *4 (E.D. Ky. Mar. 12, 2008).
In

Cole,

the

Court

found,

“The

Sixth

Circuit

has

not

explicitly recognized the availability of such a doctrine under
the FTCA, but several other circuit courts of appeals have applied
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a continuing violations doctrine to accrual of a cause of action
under the FTCA . . . .” Id. (citations omitted). However, the Court
further found the following:
[T]he doctrine is designed to avoid the unfair
application of the limitations doctrine where, because
the patient was under the ongoing care of an allegedlynegligent physician, he or she may not have had reason
to question the appropriateness or effectiveness of
treatment received from the physician in whom the
patient has placed their trust or to seek alternative
medical or legal advice. Dundon v. United States, 559 F.
Supp. 469, 473 (E.D.N.Y.1983). Accordingly, courts
consistently refuse to apply the doctrine where the
patient has received care from a number of physicians or
hospitals. Schunk, 783 F. Supp. at 82 (refusing to apply
doctrine where patient received care from numerous
Veterans Administration physicians and hospitals);
Lazarini v. United States, 898 F. Supp. 40 (D. Puerto
Rico 1995) (course of medical treatment by separate
individuals at Veterans Administration hospitals over
forty years did not constitute “continuing tort” to toll
accrual of limitations period), aff'd, 89 F.3d 823 (1st
Cir.1996); Ciccarone v. United States, 350 F. Supp. 554,
562–63 (E.D.Pa.1972) (same), aff'd, 486 F.2d 253 (3rd
Cir.1973). Because the treatment received by Cole in
2003 and 2004 was received from different BOP physicians
at federal prisons located in different jurisdictions,
the “continuous treatment” doctrine did not act to toll
the accrual of his claims.
Id. (citation omitted).
In addition to Cole, the United States directs the Court’s
attention to the only Sixth Circuit case the United States could
find addressing the continuous treatment doctrine that does not
include the application of state law, Riffle v. U.S. Veterans
Admin., which assumed the continuous treatment doctrine applied in
an FTCA case but did not find that it delayed accrual under the

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facts presented because the plaintiff only received “intermittent”
or “sporadic” treatment, as opposed to continuous treatment. No.
88-3448, 1989 WL 16146, at *1, 869 F.2d 1492 (Table) (6th Cir.
Feb. 13, 1989). As support for its findings about the continuous
treatment, the Riffle Court cited Wehrman v. United States, 830
F.2d 1480 (8th Cir. 1987), which found, “Under the continuing
treatment doctrine, a plaintiff's cause of action does not accrue
until the tortious continuing treatment ends, even if the plaintiff
is aware of the facts constituting negligence before that time.”
830 F.2d at 1483.
Here,

the

alleged

negligent

treatment

did

not

continue.

Instead, Taylor claims his doctor at the VA did not receive his
informed consent before removing his prostate, so the alleged
negligent treatment ended at the conclusion of Taylor’s procedure.
There is no indication that Taylor was subjected to further alleged
negligent treatment following the procedure. Therefore, even if
the Court were to assume the continuous treatment doctrine applies
in this case, the doctrine would not toll Taylor’s two-year
deadline because the alleged negligent treatment was not of a
continuous nature. Having considered the matter fully, and being
otherwise sufficiently advised,
IT IS ORDERED as follows:

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(1) The United States’ Motion to Dismiss [DE 5] pursuant to
Rule 12(b)(6) is GRANTED because Plaintiff Charles Taylor’s claim
is untimely;
(2) This matter is DISMISSED WITH PREJUDICE;
(3) This action is STRICKEN from the Court’s active docket;
and
(4) Judgment SHALL be entered contemporaneously with this
Memorandum Opinion and Order.
This 11th day of January, 2022.

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