PRESCOTT v. UNITED STATES
Filing
106
ORDER ON THE GOVERNMENT'S MOTION TO DISMISS re 89 Motion to Dismiss for Lack of Jurisdiction By JUDGE JON D. LEVY. (akr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARK S. PRESCOTT,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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1:14-cv-00551-JDL
ORDER ON THE GOVERNMENT’S MOTION TO DISMISS
I. INTRODUCTION
Mark S. Prescott, a veteran of the United States Navy, claims that he was
negligently treated by Dr. Thomas Franchini (hereinafter “Franchini”), a former
Veterans Affairs podiatrist at the Togus Veterans Affairs Medical Center (the
“VAMC”). He also alleges that the VAMC and Franchini fraudulently concealed
Franchini’s negligence, preventing him from asserting his rights in a timely fashion.
In his Second Amended Complaint (ECF No. 84), Prescott asserts 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. 89).
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. 32 at 40. The Government argues that because § 2902
is a statute of repose, the three-year repose period for the medical negligence alleged
by Prescott began to run no later than January 4, 2007—the date of Prescott’s second
and last surgery performed by Franchini—rather than from February 2013, when
Prescott discovered the facts underlying his claims. Thus, the claims alleged by
Prescott are time-barred absent some basis in law or equity for tolling the statute of
repose.
Prescott asserts that the statutory tolling provision in 14 M.R.S.A. § 859 (2017)
related to fraudulent concealment applies to his 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 Prescott’s claims, its six-year limitations period
started 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
2
accordance with § 2902’s statute of repose, to six years from the time Prescott
discovered the alleged tortious act, brings Prescott’s claims within § 859’s six-year
statute of limitation. Accordingly, I deferred a final ruling on the applicability of
§ 859 in connection with the first Motion to Dismiss to afford Prescott, 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 Prescott, and that these facts are inextricably
intertwined with the merits of Prescott’s claims.
Thus, I cannot yet determine
whether, as a matter of law, § 859 governs Prescott’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.
1 See Wood v. United States, 1:14-cv-00399-JDL; Mansir v. United States, 1:14-cv-00503-JDL; Myrick v. United
States, 1:15-cv-00045-JDL; Korsiak v. United States, 1:15-cv-00220-JDL; and Downs v. United States, 1:15-cv00525-JDL.
3
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
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:
2
Citing United States v. Kwai Fun Wong, 135 S.Ct. 1625 (2015), Prescott argues that because “the FTCA’s time
bars are non-jurisdictional and subject to equitable tolling,” claims of untimeliness under the FTCA cannot be
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. Prescott 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 §§ 1346(b) and 2674. See ECF No. 89 at 1-2; 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
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
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.
5
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.
United States, 99 F.3d 1200, 1209 (1st Cir. 1996) (citing Murphy v. United States, 45
F.3d 520, 522 (1st Cir. 1995)).
Prescott’s Second Amended Complaint alleges facts intended to demonstrate
fraudulent concealment in two ways:
first, fraudulent concealment allegedly
committed by Franchini in misleading Prescott as to the results of his surgeries and
the reasons for the continuing problems he experienced with his ankle; and second,
fraudulent concealment allegedly committed by the VAMC in concealing and/or
failing to disclose Franchini’s negligent treatment to Prescott.
I address, in order,
(1) the Government’s challenge to Prescott’s allegations of fraudulent concealment;
(2) whether a special relationship existed between Prescott and the VAMC that
imposed a duty on the VAMC to disclose Franchini’s alleged negligence to Prescott;
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.
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1.
Fraudulent Concealment under 14 M.R.S.A. § 859
To benefit from the six-year statute of limitations provided by § 859, Prescott
must establish that the VAMC or Franchini, acting as its employee, actively
concealed facts from him and that he relied on the concealment to his 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
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
7
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, Prescott may show that a special relationship existed between
himself and the VAMC or Franchini, acting as its employee, which imposed a duty to
disclose to Prescott 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.
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 Prescott’s assertion of fraudulent concealment by considering (A) the
relevant allegations of active concealment made by Prescott; (B) the Government’s
challenge to those allegations; and (C) Prescott’s allegations of a special relationship.
A.
Prescott’s Allegations of Active Concealment
i. Concealment by Dr. Franchini
Prescott’s Second Amended Complaint alleges that Franchini concealed
material facts in an attempt to hide that he performed improper and unnecessary
surgery. Specifically, Prescott alleges that he injured his left leg, ankle, and foot
while running in the 1990s and that his condition worsened over time, necessitating
surgical procedures in 2001 and 2003. He began receiving medical treatment from
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Franchini at the VAMC in November 2005, at which time Franchini diagnosed him
with osteophytes in his left ankle.
Franchini later performed two surgeries on
Prescott.
Prescott claims that during the first surgery in July 2006, Franchini removed
hardware that had previously been placed in his ankle in 2001 and 2003, and
afterwards wrote a surgical note stating that Prescott had “tolerated all aspects of
the surgery well and left the Operating Room in satisfactory condition.” Prescott
further alleges that he continued to experience pain in his left ankle, and that, in
response, Franchini planned to reevaluate Prescott’s ankle in the future, later writing
in Prescott’s medical file that Prescott’s “ankle still needs to be addressed and . . . a
new procedure should be done in six months in order to reduce [Prescott’s] chronic
pain.”
Franchini performed a second surgery—an “open repair of osteochondral defect
of the left talar dome”—in January 2007, after which Prescott alleges that Franchini
wrote a note in his medical record stating that “ankle radiographs show a wellhealing osteotomy of the medial malleolus,” and subsequently that Prescott had a
“healed osteotomy.” Prescott further alleges that Franchini told him that injection
therapy to the left ankle region could be appropriate to address his ongoing pain
problems.
Prescott claims that he continued to experience pain in his ankle and foot, and
that approximately two years later, in January 2009, Franchini wrote in Prescott’s
medical record that the pain was the result of degenerative joint disease. Prescott
9
alleges that Franchini examined him again in December 2009, noting at that time
that he had “developed an abnormal gait due to damage of the left ankle and started
to cause excessive load to the right ankle which is causing pain and discomfort.”
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 No. 94-3.
In early 2013, the VAMC invited Prescott to a meeting with VAMC Director
Ryan Lilly and VAMC Chief of Staff Dr. Timothy Richardson concerning his medical
care, at which time they informed Prescott of a podiatric review stating that
Franchini’s care was “less than ideal” and may have caused Prescott’s symptoms to
worsen.
10
Prescott contends that Franchini’s statements in 2009—that his ongoing
problems with pain and mobility were due to degenerative joint disease, rather than
the surgical procedures that Franchini performed in 2006 and 2007—were knowingly
false or made with a reckless disregard for their truth or falsity in an attempt to
conceal that Franchini had performed the 2006 and 2007 surgeries improperly and
unnecessarily. Prescott also argues that Franchini’s alleged concealment is imputed
to the VAMC because Franchini was acting within the scope of his employment.
ii. Concealment by the VAMC
Prescott contends that the VAMC fraudulently concealed Franchini’s
malpractice, and in so doing was also directly negligent in its care of Prescott.
Specifically, the Second Amended Complaint alleges that in late 2009, VAMC officials
became aware of general concerns regarding Franchini’s patient care. Dr. Richardson
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 directed Dr. Sampson
3 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.
11
to begin “face-to-face” disclosures to patients who had been identified as having
received substandard care from Franchini.
The VAMC’s disclosure of adverse events related to clinical care is governed by
VHA Directive 2008-002 (the “Directive”). 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.” At some point between April 17 and April 24, 2012, Dr. Sampson reviewed
Prescott’s case and provided a written assessment to the VAMC. ECF No. 89-2 at ¶
19. Nearly a year later, the VAMC contacted Prescott in February 2013 to inform
him that Franchini had possibly provided substandard care. Prescott alleges that the
VAMC actively concealed Franchini’s negligence from him 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, Prescott has submitted his own declarations, deposition transcripts, and
exhibits.
As to Franchini, the Government first argues that Prescott’s claim that
Franchini fraudulently concealed substandard surgical procedures is factually
unsupported because there is no evidence that either surgery deviated from the
applicable standard of care. The Government cites a February 2013 podiatric note
regarding Franchini’s care of Prescott that found no fault with the 2006 surgery and
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concluded only that the 2007 surgery was “less than ideal” and “may have caused
bone pressure against the medial wall of the talus . . . which could explain why
[Prescott’s] symptoms became so much worse than before the last surgery.”
Second, the Government asserts—incorporating by reference an argument
made in a related case (Wood v. United States, 1:14-cv-00399-JDL)—that there is no
evidence that Prescott’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, Prescott does not predicate his fraudulent
concealment claim on anything contained in his 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.” Wood, 1:14-cv-00399-JDL, 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 three 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
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Franchini’s practices; second, that the facts show only nondisclosure rather than
concealment; and third, even if the VAMC did conceal facts from Prescott, it could
not have done so until, at the earliest, March 2010 when Dr. Sampson finished his
review of the 25 randomly chosen surgical cases and concluded that there were
concerns regarding Franchini’s care. ECF No. 89 at 3. Therefore, the Government
contends, there is no allegation that the VAMC had any information to conceal during
the three-year period beginning January 4, 2007, the date of Prescott’s second (and
last) surgery by Franchini, which the Government argues is when Prescott’s period
of repose began to run.
The Government makes both a facial and a factual challenge to Prescott’s
allegations. Neither party cites to 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 Torres-Negrón,
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. 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
14
underlying accuracy.”). I adopt the approach suggested by Torres-Negrón. 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 also required,
the allegations of Prescott’s Second Amended Complaint would survive facial
scrutiny.
It is apparent from the factual record submitted by the parties that the
jurisdictional facts, including fraudulent concealment and when the cause of action
accrued, and the facts related to the merits (i.e., negligence) are intertwined. Both
concern what Franchini allegedly did and said to Prescott, and what was and was not
communicated to Prescott regarding the potential cause of his ongoing pain. 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 Prescott as the nonmovant and
resolving all reasonable inferences in his favor. See Small Justice LLC v. Xcentric
Ventures LLC, 873 F.3d 313, 323 (1st Cir. 2017). Applying that standard, I conclude
that Prescott’s allegations of active concealment, although disputed by the
Government, have a factual foundation and raise a genuine issue of disputed material
fact concerning whether Franchini and the VAMC concealed instances of alleged
negligence from Prescott.
15
The Government concedes that Prescott had the 2006 and 2007 ankle
procedures, and that Franchini told him that his continuing pain after the 2007
procedure was due to Prescott’s own anatomy (degenerative joint disease) rather than
an iatrogenic cause.
Although the Government argues that the February 2013
podiatric note does not evidence a deviation from the standard of care, the note’s
statement that Franchini’s surgery may have caused a condition “which could explain
why [Prescott’s] symptoms became so much worse than before the last surgery,”
creates a genuine factual dispute as to whether Franchini was negligent.
Furthermore, although Prescott does not base his fraudulent concealment allegations
on the contents of his 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 Prescott. The Government
argues that the Walker Memorandum “hardly provides a sufficient factual foundation
for [Prescott’s] ‘active concealment’ claim,” citing a declaration from Walker stating
that she never spoke to Franchini and had no first-hand knowledge regarding his
state of mind, or what he was thinking when he documented the condition of his
patients. However, although Walker’s Declaration minimizes the foundation for the
conclusions stated in her earlier Memorandum, it does not neutralize the factual
significance of these 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 declaration, the representations he made to his patients,
16
including Prescott following the 2007 surgery, were either knowingly false or made
with reckless disregard as to their falsity.
Resolving all reasonable inferences in Prescott’s favor, I conclude that a jury,
presented with the facts asserted by Prescott, considered in conjunction with the
Walker Memorandum, could reasonably infer that when Franchini told Prescott that
his allegedly unsuccessful procedure was successful and that his continued pain was
due to his 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 Prescott’s reliance, and that Prescott 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.
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. 56-5 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.
17
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.
Thus, rather than make disclosures to patients, the VAMC undertook a secondary
review of all of Franchini’s cases starting in the summer of 2012, which had the effect
of further postponing the disclosure.
Dr. Sampson reviewed Prescott’s record between April 17 and April 24, 2012,
adding Prescott to a list of patients potentially impacted by Franchini’s alleged
malpractice, ECF No. 89-2 at ¶ 19, and testified that it was his expectation that
patients who had suffered adverse events should and would be promptly notified.
ECF No. 94-5 at 149, 167. The VAMC did not send a disclosure letter to Prescott,
however, until in or around February 2013, almost ten months later. A declaration
from Dr. Richardson indicates that acceleration toward eventual disclosure occurred
only after Brian Stiller was replaced as the VAMC’s Chief Executive Officer. See ECF
No. 89-1 at ¶ 8. Even at that point, Ryan Lilly, who was the Associate Director and
then the Director at the VAMC, testified that the decision was made to delay
disclosures until patients were re-examined. ECF No. 94-8 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
18
public eye. There is evidence that VAMC officials avoided or delayed compliance with
the Directive’s timeframes. The two VAMC officials most responsible for making the
disclosures, Dr. Richardson and former Chief Executive Officer Stiller, were
ultimately disciplined by the Veterans Administration for the years-long delay that
occurred. 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. 94-4 at 8, 10. Considering all of the facts in the light most favorable to
Prescott 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.
Finally, the parties dispute when Prescott’s cause of action accrued and when
the statute of repose began to run. The Government asserts that because Prescott
alleges harm resulting from negligently performed surgeries, the latest his claim
could have accrued is January 4, 2007, the day of his last surgery with Franchini. As
such, even assuming the VAMC did conceal information from Prescott after it had
notice of Franchini’s negligent care in March 2010, that concealment was too late to
save his claims. Brawn, 819 A.2d at 1026 (“After a cause of action expires pursuant
to the three-year statute of limitation no amount of subsequent concealment can
19
revitalize an already stale claim.”).
Prescott argues, however, that Franchini’s
continuing misrepresentations to him as to the success of the surgeries and the
ongoing cause of his pain, which continued until January 2010, constitute not only
fraudulent concealment, but also continuing acts of professional negligence.
On the record before me, a jury could reasonably find that Franchini’s
postoperative care, which stretched into January 2010, constituted “continuing
negligent treatment”:
[P]ursuant to section 2902, a plaintiff may bring a single action alleging
continuing negligent treatment that arises from two or more related acts
or omissions by a single health care provider or practitioner where each
act or omission deviated from the applicable standard of care and, to at
least some demonstrable degree, proximately caused the harm
complained of, as long as at least one of the alleged negligent acts or
omissions occurred within three years of the notice of claim.
Baker v. Farrand, 26 A.3d 806, 816 (Me. 2011). The harm Prescott alleges is the
injury to his right ankle, foot, and leg (and related pain) due to Franchini’s care.
Although Prescott alleges the harm commenced with surgery, he further alleges that
Franchini’s concealment of the harm—and the true cause of Prescott’s ongoing
problems—prolonged and exacerbated his injury and pain. A jury could reasonably
find from these facts that Franchini’s concealment deviated from the standard of care
and was a proximate cause of Prescott’s harm. Thus, it is possible that Prescott’s
three-year statute of repose did not expire until January 2013.
Resolving all reasonable inferences in Prescott’s favor, I conclude that there is
a genuine factual dispute as to whether the VAMC intentionally delayed disclosures
20
to conceal Franchini’s alleged negligence from his patients, including Prescott. 4
Because Franchini’s treatment of Prescott ended in January 2010, if the VAMC had
disclosed its findings soon after the April 2012 review of Prescott’s care was
completed, he 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
Prescott contends in the alternative that even absent active concealment, a
special relationship existed between him and the VAMC so that the VAMC’s failure
to inform him 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 Prescott had failed to establish
that a special relationship existed between him and the VAMC based upon a hospitalpatient relationship. ECF No. 32 at 31-32. Thus, Prescott’s argument that a special
relationship existed between him and the VAMC is barred by the law of the case
doctrine. Remexcel Managerial Consultants, Inc. v. Arlequín, 583 F.3d 45, 53 (1st Cir.
4
I cannot and do not resolve that factual dispute at this stage of the proceedings.
21
2009) (quoting Arizona v. California, 460 U.S. 605, 618 (1983) (“When a court decides
upon a rule of law, that 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, Prescott’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 Prescott’s relationship with the VAMC—
that of a Navy 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 Prescott’s life to the extent
that it was providing him with medical care, its presence in his 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 Prescott and the VAMC, and,
therefore, there is no reason to apply § 859 on that basis.
22
2.
Claim for Fraudulent Concealment
In addition to its argument that Prescott’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 Prescott’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 Prescott’s case for
purposes of the statute of limitations analysis under § 859 bears no connection to,
and does not save, Prescott’s separate claim for fraudulent concealment as a basis to
recover damages.
23
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. 89) 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
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