WOOD v. USA
Filing
124
ORDER ON THE GOVERNMENT'S MOTION TO DISMISS re 107 Motion to Dismiss for Lack of Jurisdiction By JUDGE JON D. LEVY. (akr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
APRIL M. WOOD,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
)
)
)
)
)
)
)
)
)
1:14-cv-00399-JDL
ORDER ON THE GOVERNMENT’S MOTION TO DISMISS
I. INTRODUCTION
April M. Wood, a veteran of the United States Army, claims that she was
negligently treated by Dr. Thomas Franchini (hereinafter “Franchini”), a former
Veterans Affairs podiatrist at the Togus Veterans Affairs Medical Center (the
“VAMC”). She also alleges that the VAMC and Franchini fraudulently concealed
Franchini’s negligence, preventing her from asserting her rights in a timely fashion.
In her Second Amended Complaint (ECF No. 102), Wood brings claims against the
federal government (alternatively, the VAMC or the “Government”) for vicarious
liability for Franchini’s alleged negligence (Count I); direct liability for negligence
(Count II); lack of informed consent (Count III); and fraudulent concealment (Count
IV). The Government has moved to dismiss the Second Amended Complaint for lack
of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)
(ECF No. 107).
This is the second motion to dismiss that the Government has filed in this case.
In an Order issued in February 2016, I resolved almost all of the issues raised in the
Government’s first Motion to Dismiss in favor of the Government, ruling that Maine’s
three-year limitations period for bringing claims against health care providers, 24
M.R.S.A. § 2902 (2017) is a statute of repose and not a statute of limitations, and that
§ 2902 is not preempted by the Federal Tort Claims Act (“FTCA”), 28 U.S.C.A. §
2401(b) (2017). See ECF No. 45 at 40. The Government argues that because § 2902
is a statute of repose, the three-year repose period for the medical negligence alleged
by Wood began to run no later than December 2009—the date of Wood’s last surgery
performed by Franchini—rather than from February 2013, when Wood discovered
the facts underlying her claims. Thus, the claims alleged by Wood are time-barred
absent some basis in law or equity for tolling the three-year statute of repose.
Wood asserts that the statutory tolling provision in 14 M.R.S.A. § 859 (2017)
related to fraudulent concealment applies to her claims:
If a person, liable to any action mentioned, fraudulently conceals the
cause thereof from the person entitled thereto, or if a fraud is committed
which entitles any person to an action, the action may be commenced at
any time within 6 years after the person entitled thereto discovers that
he has just cause of action[.]
14 M.R.S.A. § 859. If § 859 governs Wood’s claims, its six-year limitations period
“starts to run when the existence of the cause of action or fraud [was] discovered or
should have been discovered by the plaintiff in the exercise of due diligence and
ordinary prudence.” Westman v. Armitage, 215 A.2d 919, 922 (Me. 1966). Extending
the limitations period from three years from the date of the alleged tortious act in
accordance with § 2902’s statute of repose, to six years from the time Wood discovered
2
the alleged tortious act, brings Wood’s claims within § 859’s six-year statute of
limitations. Accordingly, I deferred a final ruling on the applicability of § 859 in
connection with the first Motion to Dismiss to afford Wood, and the plaintiffs in five
related actions,1 the opportunity to conduct limited discovery on the issue of
fraudulent concealment and to seek to amend their complaints on the basis of that
discovery.
For the reasons explained below, I conclude that a genuine dispute of material
fact exists with regard to whether the VAMC and Franchini fraudulently concealed
instances of medical malpractice from Wood, and that these facts are inextricably
intertwined with the merits of Wood’s claims. Thus, I cannot yet determine whether,
as a matter of law, § 859 governs Wood’s claims, and I deny the Motion to Dismiss as
to Counts I (Vicarious Liability), Count II (Direct Liability), and Count III (Lack of
Informed Consent) for that reason. The Government also moves to dismiss Count IV
(Fraudulent Concealment) for lack of subject matter jurisdiction pursuant to
restrictions established by the FTCA in 28 U.S.C.A. §§ 2675(a) and 2680(h), and, as
explained below, I conclude that Count IV should be dismissed.
II. LEGAL ANALYSIS
The Government seeks to dismiss the Second Amended Complaint for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).2 A
1 See Mansir v. United States, 1:14-cv-00503-JDL; Prescott v. United States, 1:14-cv-00551-JDL; Myrick v.
United States, 1:15-cv-00045-JDL; Korsiak v. United States, 1:15-cv-00220-JDL; and Downs v. United States, 1:15cv-00525-JDL.
2 Citing United States v. Kwai Fun Wong, 135 S.Ct. 1625 (2015), Wood argues that because “the FTCA’s time
bars are nonjurisdictional and subject to equitable tolling,” claims of untimeliness under the FTCA cannot be
3
federal court generally may not rule on the merits of a case without first determining
that it has jurisdiction over the category of claim in the suit, i.e., subject matter
jurisdiction. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422,
430-31 (2007).
A defendant may challenge the court’s subject matter jurisdiction pursuant to
Rule 12(b)(1) in two ways: facially or factually. See Torres-Negrón v. J & N Records,
LLC, 504 F.3d 151, 162 (1st Cir. 2007). In a facial attack, the court accepts as true
those allegations in the complaint—“sometimes augmented by an explanatory
affidavit or other repository of uncontested facts”—that are relevant to jurisdiction,
draws all reasonable inferences from them in the plaintiff’s favor, and determines
whether they are sufficient to establish the court’s subject matter jurisdiction.
Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001); see also TorresNegrón, 504 F.3d at 162.
A defendant may also mount a factual challenge to subject matter jurisdiction:
The second way to engage the gears of Rule 12(b)(1) is by controverting
the accuracy (rather than the sufficiency) of the jurisdictional facts
asserted by the plaintiff and proffering materials of evidentiary quality
in support of that position. Unlike, say, a motion for summary judgment
under Federal Rule of Civil Procedure 56(c), this type of challenge under
Federal Rule of Civil Procedure 12(b)(1)—which we shall call a “factual
challenge”—permits (indeed, demands) differential factfinding. Thus,
the plaintiff’s jurisdictional averments are entitled to no presumptive
weight; the court must address the merits of the jurisdictional claim by
resolved under Rule 12(b)(1), and are instead an affirmative defense which the defendant has the burden of
establishing. 135 S.Ct. at 1638. Wood is correct that in Kwai Fun Wong, the Supreme Court ruled that the time
bars contained in § 2401(b) of the FTCA are non-jurisdictional. See Kwai Fun Wong, 135 S.Ct. at 1637-38. The
Government’s Motion to Dismiss, however, does not allege non-compliance with § 2401(b)’s time bars but rather
alleges a violation of § 2902, which determines the Government’s waiver of sovereign immunity pursuant to 28
U.S.C.A. §§ 1346(b) and 2674. See ECF No. 107 at 1-3; 28 U.S.C.A. §§ 1346(b), 2674; Abreu v. United States, 468
F.3d 20, 25 (1st Cir. 2006) (“In a suit under the FTCA, the district court’s jurisdiction is limited by 28 U.S.C. §
1346(b). Only claims properly within the scope of the FTCA’s waiver of sovereign immunity in 28 U.S.C. § 2674
are cognizable.”). The Government’s challenge, therefore, is jurisdictional, and Kwai Fun Wong is inapposite.
4
resolving the factual disputes between the parties. In conducting this
inquiry, the court enjoys broad authority to order discovery, consider
extrinsic evidence, and hold evidentiary hearings in order to determine
its own jurisdiction.
Valentin, 254 F.3d at 363 (internal citations and footnote omitted). “In a situation
where the parties dispute the predicate facts allegedly giving rise to the court’s
jurisdiction, the district court will often need to engage in some preliminary factfinding.” Skwira v. United States, 344 F.3d 64, 71-72 (1st Cir. 2003).
Where, in a factual challenge, the necessary facts are relevant both to
jurisdiction and to the merits of the plaintiff’s case, however, “the standard applicable
to a motion for summary judgment” applies. Torres-Negrón, 504 F.3d at 163 (quoting
Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (internal quotation marks
omitted)). If the material jurisdictional facts are not in dispute and the moving party
is entitled to prevail on the jurisdictional question as a matter of law, then the motion
to dismiss is granted. Torres-Negrón, 504 F.3d at 163; Me. Human Rights Comm’n v.
Sunbury Primary Care, P.A., 770 F. Supp. 2d 370, 397 (D. Me. 2011). On the other
hand, “[s]hould the plaintiff present evidence showing that the relevant facts are
genuinely disputed, the case proceeds to trial and the jurisdictional dispute will be
reevaluated once the factfinder has resolved the issues of fact.” Sunbury, 770 F.
Supp. 2d at 397 (citing Torres-Negrón, 504 F.3d at 163); see also Valentin, 254 F.3d
at 363 n.3 (“[F]or cases in which the jurisdictional facts, though genuinely disputed,
are inextricably intertwined with the merits of the case . . . the court may defer
resolution of the jurisdictional issue until the time of trial.”). At trial, “[i]t is the
plaintiff’s burden to prove the existence of subject matter jurisdiction.” Aversa v.
5
United States, 99 F.3d 1200, 1209 (1st Cir. 1996) (citing Murphy v. United States, 45
F.3d 520, 522 (1st Cir. 1995)).
Wood’s Second Amended Complaint alleges facts intended to demonstrate
fraudulent concealment in two ways:
first, fraudulent concealment allegedly
committed by Franchini in misleading Wood as to the results of her initial surgery
and the reasons for the continuing problems she experienced with her foot; and
second, fraudulent concealment allegedly committed by the VAMC in concealing
and/or failing to disclose Franchini’s negligent treatment to Wood.
I address, in
order, (1) the Government’s challenge to Wood’s allegations of fraudulent
concealment; (2) whether a special relationship existed between Wood and the VAMC
that imposed a duty on the VAMC to disclose Franchini’s alleged negligence to Wood;
and (3) the Government’s contention that because the FTCA does not afford subject
matter jurisdiction for any claim arising out of misrepresentation, Count IV of the
Second Amended Complaint should be dismissed because it specifically seeks
damages for fraudulent concealment, a form of misrepresentation.
1.
Fraudulent Concealment under 14 M.R.S.A. § 859
To benefit from the six-year statute of limitations provided by § 859, Wood
must establish that the VAMC or Franchini, acting as its employee, actively
concealed facts from her and that she relied on the concealment to her detriment.
Brawn v. Oral Surgery Assocs., 819 A.2d 1014, 1026 (Me. 2003). “Active concealment
of the truth connotes steps taken by a defendant to hide the true state of affairs from
the plaintiff.” Kezer v. Mark Stimson Assocs., 742 A.2d 898, 905 (Me. 1999) (internal
6
quotation marks omitted). Active concealment does not require an affirmative false
statement and “may consist as well in the concealment of what is true as in the
assertion of what is false.” Horner v. Flynn, 334 A.2d 194, 203 (Me. 1975), overruled
on other grounds by Taylor v. Comm’r of Mental Health & Mental Retardation, 481
A.2d 139 (Me. 1984); see also Sprague Energy Corp. v. Massey Coal Sales Co., No. 05222-P-S, 2006 WL 696197, at *17 (D. Me. Mar. 15, 2006) (“Fraud need not necessarily
take the form of an express false statement; rather, it can be predicated on active
concealment of the truth.”).
When a plaintiff alleges fraudulent concealment through the active
concealment of facts, the court must assess the allegations against the elements of
fraud: (1) the making of a false representation; (2) of a material fact; (3) with
knowledge of its falsity or in reckless disregard of whether it is true or false; (4) for
the purpose of inducing another to act upon it; and (5) justifiable and detrimental
reliance by the other person. Brawn, 819 A.2d at 1026; see also Harris Mgmt., Inc. v.
Coulombe, 151 A.3d 7, 16 n.7 (Me. 2016). “In alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake. Malice,
intent, knowledge, and other conditions of a person’s mind may be alleged generally.”
Fed. R. Civ. P. 9(b).
Alternatively, Wood must show that a special relationship existed between
herself and the VAMC or Franchini, acting as its employee, which imposed a duty to
disclose to Wood the facts associated with the alleged professional negligence, and
that the duty was breached by the VAMC or Franchini. See Brawn, 819 A.2d at 1026.
7
Absent a special relationship, silence and inaction are insufficient as a matter of law
to establish active concealment because omission by silence is not tantamount to
supplying false information. See Brae Asset Fund, L.P. v. Adam, 661 A.2d 1137, 1140
(Me. 1995) (“[A]bsent a fiduciary or confidential relationship[] there is no duty to
disclose information.”); Glynn v. Atl. Seaboard Corp., 728 A.2d 117, 120 (Me. 1999).
I analyze Wood’s assertion of fraudulent concealment by considering (A) the
relevant allegations of active concealment made by Wood; (B) the Government’s
challenge to those allegations; and (C) Wood’s allegations of a special relationship.
A.
Wood’s Allegations of Active Concealment
i. Concealment by Dr. Franchini
Wood’s Second Amended Complaint alleges that Franchini concealed material
facts in an attempt to hide that he performed improper and unnecessary surgeries.
Specifically, Wood alleges that Franchini improperly performed a fusion of Wood’s
left ankle in 2006. She further alleges that after she informed Franchini in 2007 that
she had ongoing pain in her left ankle and foot and had difficulty walking, he told her
that the operation on her left ankle had been successful, that her ankle had been
appropriately fused, and that any problems she was experiencing were due to
degenerative joint disease and porous bone. Wood also alleges that Franchini told
her in 2009 that she needed to have a left subtalar joint fusion because of her
degenerative joint disease, and that the cause of her ongoing problems was osteopenia
and that she should wear special rocker bottom shoes to help her healing. Wood’s left
leg was eventually amputated to address her pain.
8
Additionally, the Second Amended Complaint cites an April 2012
memorandum authored by Yuri Walker, the Director of the Risk Management
Program at the Veterans Health Administration’s Office of Quality, Safety, and
Value, on behalf of a “Subject Matter Expert Panel” convened by the VAMC to
evaluate Franchini’s patient care (the “Walker Memorandum” or “Memorandum”).
The Memorandum states that “it appears that [Franchini] was actively falsifying
some medical records, stating that the patient was doing well, when the opposite was
true.” The Memorandum also contains the following question and answer:
Q: Is it certain that records were being actively falsified, or was it a case
of poor clinical judgment?
A: It appears to be a combination of both active falsification and poor
clinical judgment. The radiographs did not support the decisions to
operate in most cases. In other cases, patients have stated that what
the provider told them is different from what was documented in the
chart. It has been noted that there was a lack of conservative
management in most cases, and an emphasis on surgery.
ECF 112-3, at 3.
Wood contends that the following representations were knowingly false or
made with a reckless disregard for their truth or falsity and were all part of an
attempt to conceal that the 2006 surgery was performed improperly and
unnecessarily: Franchini’s assurances that her 2006 surgery had been successful; his
statements that her ankle and foot problems were due to degenerative joint disease
and porous bone; his statement that the cause of her ankle and foot problems was
osteopenia; and his statement that Wood needed a second surgical procedure in 2009
for reasons having to do with her own anatomy. Wood also asserts that Franchini’s
9
alleged concealment is imputed to the VAMC because Franchini was acting within
the scope of his employment.
ii. Concealment by the VAMC
Wood
contends
that
the
VAMC
fraudulently
concealed
Franchini’s
malpractice, and in so doing was also directly negligent in its care of her. Specifically,
the Second Amended Complaint alleges that in late 2009, VAMC officials became
aware of concerns regarding Franchini’s surgical practices. Dr. Timothy Richardson,
then chief of staff at the VAMC, directed Dr. Robert Sampson, then Chief of Surgery,
to conduct a review of 25 random surgical procedures performed by Franchini. Dr.
Sampson completed his review in March 2010 and concluded that there appeared to
be “significant documentation and quality of care issues in a number of [the 25]
cases.”3 On April 27, 2010, the VAMC Professional Standards Board suspended
Franchini who would later resign on November 8, 2010. In September, the VAMC
sent an “alert notice” to the state licensure boards in the jurisdictions where
Franchini was licensed, notifying them of an issue of clinical competence. In April
2010, the VAMC prepared an “Issue Brief” concerning the VAMC’s investigation of
Franchini’s care, which ordered a broader review of Franchini’s surgical cases.
The VAMC’s disclosure of adverse events related to clinical care is governed by
VHA Directive 2008-002 (the “Directive”).
The Directive defines three kinds of
disclosure, including “Institutional Disclosure” for “cases resulting in serious injury
or death, or those involving reasonably expected serious injury, or potential legal
It bears emphasis that this and the other alleged facts have not been fully examined and tested by
the trial process and finally determined by a factfinder.
3
10
liability.” ECF No. 72-5 at 3. The VAMC “Issue Brief” on Franchini noted that, as of
April 15, 2010, it was “considered likely that institutional disclosure of unnecessary
or inappropriate surgical interventions [by Franchini] will be required.” ECF No.
112-4 at 2. At some point between September 2011 and March 2012, Dr. Sampson
reviewed Wood’s case and provided a written assessment to Dr. Richardson in March
2012, which stated, among other concerns with Franchini’s care, that there was
evidence of negligence or a deviation from the normal standard of care. The VAMC
contacted Wood in February 2013 to alert her that Franchini may have provided her
negligent care, more than three years after Franchini’s last operation on Wood. Wood
alleges that the VAMC actively concealed Franchini’s negligence from her by
deliberately delaying its investigation and disclosure of Franchini’s negligence.
B.
The Government’s Challenge
The Government has submitted declarations and exhibits which, it contends,
establish that neither Franchini nor the VAMC engaged in fraudulent concealment.
In response, Wood has submitted her own declarations, deposition transcripts, and
exhibits.
As to Franchini, the Government first asserts that there is no evidence that
Wood’s medical treatment was at issue when Walker authored her April 2012
Memorandum, and notes that Walker never spoke to Franchini in preparing that
report.
The Government further discounts the probative value of the Walker
Memorandum by noting that although Walker found that Franchini appeared to have
falsified patient records, Wood does not predicate her fraudulent concealment claim
11
on anything contained in her own medical records. Finally, the Government submits
a declaration from Franchini attesting that he never “‘lied’ to a patient about their
condition or the reasons why [he] believed they were experiencing pain,” and never
“concealed anything about a patient’s condition or [his] care from that patient.” ECF
No. 115-1 at ¶ 3. Franchini also states that “any statements [he] made to all of [his]
patients (plaintiffs included) were based on what [he] believed in good faith to be true
at the time,” id., and that he endeavored “at all times to communicate accurate and
truthful information to all my patients.” Id. at ¶ 4.
As to the VAMC, the Government makes two primary arguments: first, based
on the affidavits and declarations from VAMC officials, the facts do not show an
intent to conceal but rather, at worst, a negligent but good faith investigation into
Franchini’s practices, and second, that the facts show only nondisclosure rather than
concealment.
The Government makes both a facial and a factual challenge to Wood’s
allegations. Neither party cites to any decisional authority in this Circuit as to
whether a defendant can have it both ways by asking the court to consider the
sufficiency of a complaint’s jurisdictional allegations, while simultaneously disputing
most of those allegations and submitting evidence outside the pleadings. In TorresNegrón, however, the court noted that “if the movant, either in his motion or in any
supporting materials, denies or controverts the pleader’s allegations of jurisdiction,
then he is deemed to be challenging the actual existence of subject matter jurisdiction,
and the allegations of the complaint are not controlling.” 504 F.3d at 162 n.8 (1st Cir.
12
2007), quoting 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1363, at
653-54 (1969); but see Hollingsworth v. United States, No. CV-05-80-B-W, 2005 WL
3435099, at *4 n.5 (D. Me. Dec. 14, 2005) (“[A]ddressing the sufficiency of the
allegations in the Complaint would appear to be a necessary prerequisite before
examining their underlying accuracy.”). I adopt the approach suggested by TorresNegrón. Where, as here, a party disputes the jurisdictional allegations of a complaint
and offers a substantial body of evidence in support of its position, the court’s inquiry
should focus on that evidence to determine whether subject matter jurisdiction
actually exists. Although I proceed accordingly, I note that even if a facial analysis
was required, the allegations of Wood’s Second Amended Complaint would survive
facial scrutiny.
It is apparent from the factual record submitted by the parties that the
jurisdictional facts (i.e., fraudulent concealment) and the facts related to the merits
(i.e., negligence) are intertwined. Both concern what Franchini allegedly did and said
to Wood, and what was and was not communicated to Wood regarding the potential
cause of the ongoing problems that led to the eventual amputation of her leg. As
such, I employ the standard applicable to a motion for summary judgment in ruling
upon the Government’s factual challenge, see Torres-Negrón, 504 F.3d at 162-63, by
assessing the record in the light most favorable to Wood as the nonmovant and
resolving all reasonable inferences in her favor. See Small Justice LLC v. Xcentric
Ventures LLC, 873 F.3d 313, 323 (1st Cir. 2017). Applying that standard, I conclude
that Wood’s allegations of active concealment, although disputed by the Government,
13
have a factual foundation and raise a genuine issue of disputed material fact
concerning whether Franchini concealed instances of alleged negligence from Wood
and whether the VAMC also concealed Franchini’s alleged negligence from Wood.
The Government concedes that Wood had the 2006 and 2009 ankle fusion
procedures, that Franchini told her that the 2006 procedure was successful, and that
Franchini told her that the 2009 procedure was necessary for reasons having to do
with Wood’s own anatomy rather than an iatrogenic cause. The Government does
not dispute that Franchini blamed Wood’s pain on degenerative joint disease and
osteopenia rather than his own performance. Although Wood does not base her
fraudulent concealment allegations on the contents of her own medical records, the
Walker Memorandum nevertheless raises a question of fact as to whether Franchini
engaged in a pattern of active falsification in his dealings with his patients, including
Wood. The Government argues that the Walker Memorandum “hardly provides a
sufficient factual foundation for Wood’s ‘active concealment’ claim,” citing a
declaration from Walker stating that she never spoke to Franchini and had no firsthand knowledge regarding his state of mind, or what he was thinking when he
documented the condition of his patients. ECF No. 115 at 7 n.1. However, although
Walker’s Declaration minimizes the foundation for the conclusions stated in her
earlier Memorandum, it does not neutralize the factual significance of those
conclusions. A jury could reasonably infer from the panel’s conclusions, stated in the
Walker Memorandum, that Franchini regularly falsified information related to his
treatment of VAMC patients, and, notwithstanding the denials contained in his
14
declaration, the representations he made to his patients, including Wood following
her 2006 surgery, were either knowingly false or made with reckless disregard as to
their falsity.
Resolving all reasonable inferences in Wood’s favor, I conclude that a jury,
presented with the facts asserted by Wood, considered in conjunction with the Walker
Memorandum, could reasonably infer that when Franchini told Wood that her
unsuccessful procedure was successful and that her continued pain was due to her
own anatomy, Franchini had knowledge of its falsity or acted with reckless disregard
as to whether it was true or false, that the false representation was material and
made to induce Wood’s reliance, and that Wood reasonably relied on the
representation. See Harris Mgmt., Inc., 151 A.3d at 16 n.7.
The parties also dispute whether the facts show the VAMC’s intent to conceal.
Wood frames the issue as “whether anyone associated with the Government took
deliberate action which had the effect of concealing information concerning
Franchini’s malpractice and thereby delayed the onset of litigation, to the detriment
of patients injured by the malpractice.” ECF No. 112 at 10 n.4 (emphasis added).
This casts too wide a net, however, by eliminating the element of a specific intent to
conceal. The Government frames the issue more narrowly, arguing that Wood must
show the VAMC was “cognizant of the applicable statute of limitations” and
“purposely delayed” its investigation to discourage or negate otherwise valid claims
against the Government. ECF No. 107 at 10. Although such a motive could form the
basis for a finding of fraudulent concealment, it is not the only possible motive that
15
might do so. Any motive resulting in the making of a false representation for the
purpose of gaining advantage by inducing another to act or rely upon it is sufficient.
See Harris Mgmt., Inc., 151 A.3d at 17. Thus, for example, if a hospital’s leaders were
motivated to conceal information showing a physician’s possible negligence in the
hope of avoiding the negative publicity associated with a complaint by the patient,
whether timely or not, that motive would demonstrate an intent to conceal.
The VAMC became aware of problems with Franchini’s medical care in late
2009. The initial review of a sample of his cases completed in March 2010 raised even
greater concerns, prompting Franchini’s suspension and subsequent resignation, an
investigation into all of Franchini’s surgical cases, and the expectation of an
“Institutional Disclosure” pursuant to the VAMC’s Directive. The VAMC’s Directive
states that “[i]nstitutional disclosure of an adverse event must take place as soon as
possible (generally within 24 hours, but no more than 72 hours if adequate
information is available) after a practitioner’s discovery of the adverse event.” ECF
No. 72-5 at 10. The undisputed facts further show that no disclosures were made in
2010, and that the broader investigation into Franchini’s surgical cases conducted by
Dr. Sampson stretched from 2010 into 2012.
Dr. Richardson testified at his
deposition that notwithstanding the reports he received from Dr. Sampson between
2010 and 2012, he decided not to make disclosures because he needed more
information and because premature disclosures could cause liability for the VAMC.
ECF No. 112-6 at 32, 262, 266. Thus, rather than make disclosures to patients, the
VAMC undertook a secondary review of all of Franchini’s cases starting in the
16
summer of 2012 which had the effect of further postponing the disclosure. ECF No.
107-1 at ¶ 10.
Dr. Sampson reviewed Wood’s record no later than March 13, 2012, finding
evidence of negligence or a deviation from the normal standard of care, ECF No. 1073 at ¶ 15, and testified that it was his expectation that patients who had suffered
adverse events should and would be promptly notified. ECF No. 112-5 at 149, 167.
The VAMC did not send a disclosure letter to Wood, however, until February 2013,
over ten months later. Declarations from Dr. Richardson and the VAMC’s Chief
Executive Officer, Brian Stiller, indicate that acceleration toward eventual disclosure
occurred only after Stiller was replaced as VAMC’s Chief Executive Officer. See ECF
No. 107-1 at ¶ 8, 107-4 at ¶ 6. Even at that point, the decision was made to delay
disclosures until patients were re-examined, according to the testimony of Ryan Lilly,
who was the Associate Director and then the Director at the VAMC. ECF No. 112-8
at 15. The VAMC made just one disclosure in 2012, to a patient who had been treated
by Franchini and who was suffering from a terminal illness unrelated to Franchini’s
care.
I conclude that there is a genuine factual dispute as to whether the VAMC
engaged not merely in possibly negligent nondisclosure, but rather in a pattern of
conduct intended to keep the potential controversy regarding Franchini out of the
public eye. There is evidence that VAMC officials avoided or delayed compliance with
17
the Directive’s timeframes.4 The two VAMC officials most responsible for making the
disclosures, Dr. Richardson and former Chief Executive Officer Stiller, were
ultimately disciplined by Veterans Affairs for the years-long delay that occurred.
ECF No. 107-1 at ¶ 13; ECF No. 107-4 at ¶ 7. Although both attributed that delay to
inattention on their part, and explained that they at all times were acting in good
faith, the evidence also permits an inference that the disclosures were not made to
avoid placing the VAMC in a negative light with respect to its care of potentially
hundreds of its patients. The record reflects that as of July 24, 2012, when the VAMC
had reviewed all 431 of Franchini’s surgical cases, 60% or 257 were found to warrant
institutional disclosure. See ECF No. 112-4 at 8, 10. Considering all of the facts in
the light most favorable to Wood as the non-moving party, the facts could support a
finding that the VAMC’s course of conduct constituted not just nondisclosure, but
“steps taken by a defendant to hide the true state of affairs from the plaintiff.” Kezer,
742 A.2d at 905.
Resolving all reasonable inferences in Wood’s favor, I conclude that there is a
genuine factual dispute as to whether the VAMC intentionally delayed disclosures to
conceal Franchini’s negligence from his patients, including Wood.5
Because
4 To the extent Wood contends that the VAMC’s failure to follow the Directive’s disclosure policies itself amounts
to concealment by design by VAMC administrators, see, e.g., ECF No. 102 at ¶ 105, that argument fails. As
explained above, absent a special relationship there can be no concealment by inaction or silence. See Glynn, 728
A.2d at 120; Brae, 661 A.2d at 1140. Moreover, the Directive is not a formal regulation, DaVita, Inc. v. United
States, 110 Fed. Cl. 71 (Fed. Cl. 2013), and Wood has not articulated a basis for concluding that the VAMC was
in error to the extent that it did not follow the Directive, or that the VAMC’s self-imposed regulations created a
special relationship between it and its patients. However, the Directive does provide context for the VAMC’s
actions, particularly to the extent that VAMC officials took affirmative steps to avoid or delay complying with its
disclosure provisions.
5
I cannot and do not resolve that factual dispute at this stage of the proceedings.
18
Franchini’s treatment of Wood ended in December 2009, if the VAMC had disclosed
its findings soon after the March 2012 review of Wood’s care was completed, she could
have initiated a civil action within the three-year repose period established by § 2902
as well as the six-year limitations period established by § 859.
Because the facts related to subject matter jurisdiction and the merits are both
inextricably intertwined and largely in dispute, I deny the Government’s Motion to
Dismiss as to Counts I, II, and III.
C.
Special Relationship
Wood contends in the alternative that even absent active concealment, a
special relationship existed between her and the VAMC so that the VAMC’s failure
to inform her of Franchini’s malpractice constitutes fraudulent concealment. See
Noveletsky v. Metro. Life Ins. Co., No. 2:12-cv-00021-NT, 2013 WL 2945058, at *9 (D.
Me. June 14, 2013) (“In Maine, fraud by failure to disclose or by silence may be
established . . . by demonstrating a special relationship . . . that imposes an
affirmative duty to disclose.”) (internal citations omitted).
I determined in my February 2016 Order that Wood had failed to establish
that a special relationship existed between her and the VAMC based upon a hospitalpatient relationship.
ECF No. 45 at 31-32.
Thus, Wood’s special relationship
argument is barred by the law of the case doctrine.
Remexcel Managerial
Consultants, Inc. v. Arlequín, 583 F.3d 45, 53 (1st Cir. 2009) (quoting Arizona v.
California, 460 U.S. 605, 618 (1983) (“When a court decides upon a rule of law, that
19
decision should continue to govern the same issues in subsequent stages in the same
case.”).
Even if it was not barred by the law of the case doctrine, Wood’s argument
would still fail. Maine law defines a “special relationship” as a relationship “giv[ing]
rise to an affirmative duty to aid and protect, such as the relationship between a
common carrier and passenger, employer and employee, parent and [minor] child, or
innkeeper and guest.” Estate of Cummings v. Davie, 40 A.3d 971, 974 (Me. 2012)
(quotation marks omitted). The nature of Wood’s relationship with the VAMC—that
of an Army veteran receiving outpatient care for a foot and ankle injury—does not
reach the level of a power imbalance that characterized the relationships in which
the Maine Law Court has recognized a special relationship. See, e.g., Dragomir v.
Spring Harbor Hosp., 970 A.2d 310, 315 (Me. 2009) (finding special relationship
between hospital and highly vulnerable psychiatric patients); Fortin v. Roman
Catholic Bishop of Portland, 871 A.2d 1208, 1220-22 (Me. 2005) (finding special
relationship between church and student/altar boy who was sexually abused by a
priest). While the VAMC occupied an important role in Wood’s life to the extent that
it was providing her with medical care, its presence in her life “was not marked by a
great disparity of position and influence.” Gniadek v. Camp Sunshine at Sebago Lake,
Inc., 11 A.2d 308, 314-15 (Me. 2011).
There was no special relationship between Wood and the VAMC, and,
therefore, there is no reason to apply § 859 on that basis.
20
2.
Claim for Fraudulent Concealment
In addition to its argument that Wood’s claims are time-barred pursuant to
§ 2902, the Government further argues that Count IV, which seeks damages for the
tort of fraudulent concealment, as distinguished from fraudulent concealment in
connection with the application of § 859, should be dismissed for lack of subject matter
jurisdiction pursuant to 28 U.S.C.A. §§ 2675(a) and 2680(h).
Section 2680(h) limits the Federal Tort Claims Act’s waiver of sovereign
immunity established by § 1346(b)—which authorizes suits against the United States
for certain torts—over “[a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights[.]”
28 U.S.C.A.
§ 2680(h) (emphasis added). Thus, because Wood’s count for fraudulent concealment
is premised on an alleged misrepresentation, this Court lacks jurisdiction over it. See
Mullens v. United States, 785 F. Supp. 216, 219 (D. Me. 1992) (“The
misrepresentation exception to the FTCA bars suits based on negligent as well as
deliberate misrepresentations . . . whether based on false statements or a failure to
provide information[.]”) (internal quotations and citations omitted), aff’d, 976 F.2d
724 (1st Cir. 1992). That fraudulent concealment applies to Wood’s case for purposes
of the statute of limitations analysis under § 859 bears no connection to, and does not
save, Wood’s separate claim for fraudulent concealment as a basis to recover
damages.
21
I therefore grant the Government’s Motion to Dismiss as to Count IV. Because
I conclude that Count IV should be dismissed pursuant to § 2680(h), I do not analyze
it under § 2675(a).
III. CONCLUSION
For the foregoing reasons, the Government’s Motion to Dismiss the Second
Amended Complaint (ECF No. 107) is GRANTED as to Count IV, and DENIED as
to Counts I, II, and III.
SO ORDERED.
Dated this 23rd day of February 2018.
/s/ JON D. LEVY
U.S. DISTRICT JUDGE
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?