Swift v. United States
Filing
28
Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER granting 18 Defendant's Motion to Dismiss. (Dambrosio, Jolyne)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DONNA SWIFT
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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CIVIL ACTION
NO. 13-11676-JGD
MEMORANDUM OF DECISION AND
ORDER ON DEFENDANT’S MOTION TO DISMISS
June 17, 2014
DEIN, U.S.M.J.
I. INTRODUCTION
The plaintiff, Donna Swift, has brought this medical malpractice action relating to
treatment she received on or about February 8, 2010 from Dr. Mindy Parnes, who was
employed by Harbor Health Services, Inc., d/b/a Mid-Upper Cape Community Health
Center (“Harbor Health”). It is now undisputed that Harbor Health is a federally funded
health center covered by the Health Centers Act, and, as a result, any claim for negligence is governed by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and
2671, et seq. Unfortunately, however, this was unknown to plaintiff’s counsel until after
the two year period for filing an administrative claim under the FTCA had passed.
This matter is presently before this court on the “Defendant’s Motion to Dismiss”
(Docket No. 18) brought pursuant to Fed. R. Civ. P. 12(b)(1), by which the Government
seeks the dismissal of the complaint on the grounds that there is no jurisdiction over the
claim in the absence of a timely administrative claim. In response, Swift asks this court
to apply the doctrine of equitable tolling because counsel’s search at the Secretary of
State’s Office to determine the corporate identity of Harbor Health did not indicate that
the company was covered under the Health Centers Act. Therefore, counsel was unaware
of the need to comply with the FTCA prior to filing suit.
Unfortunately, this court finds itself constrained by the recent case of Sanchez v.
United States, 740 F.3d 47 (1st Cir. 2014), to find that more diligence in ascertaining the
status of Harbor Health is necessary before the doctrine of equitable tolling can be
invoked. The inquiry at the Secretary of State’s Office, made more than two years after
the allegedly negligent act, is insufficient to toll the statute of limitations. Therefore,
despite the lack of any prejudice caused by the absence of a timely administrative claim,
the motion to dismiss is ALLOWED.
II. STATEMENT OF FACTS
Standard of Review
When ruling on a motion to dismiss for lack of subject matter jurisdiction brought
pursuant to Fed. R. Civ. P. 12(b)(1), the court must accept as true all well-pleaded facts,
and give the plaintiff the benefit of all reasonable inferences. Heinrich v. Sweet, 62 F.
Supp. 2d 282, 295 (D. Mass. 1999). The burden is on the plaintiff to prove jurisdiction.
Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). The court may look beyond the
pleadings in order to determine if it has jurisdiction over the matter. Gonzalez v. United
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States, 284 F.3d 281, 288 (1st Cir. 2002), and cases cited. In fact, the district court has
“very broad discretion in determining the manner in which it will consider the issue of
jurisdiction.” Valedon Martinez v. Hosp. Presbiteriano de la Comunidad, Inc., 806 F.2d
1128, 1132 (1st Cir. 1986).
In the instant case, while the merits of plaintiff’s claim are disputed, the facts
relevant to the jurisdictional issue before this court are not in dispute. They are as
follows.1
Plaintiff’s Medical Treatment
Plaintiff Donna Swift is an adult woman who lives in Barnstable, Massachusetts.
(Compl. ¶ 1). At all relevant times she was under the medical care of the defendant, Dr.
Mindy Parnes, a licensed medical physician with an office in Hyannis, Massachusetts.
(Id. ¶¶ 2-4). Dr. Parnes was employed by Harbor Health Services, Inc., a Massachusetts
corporation with a trade name of Mid-Upper Cape Community Health Center. (Id. ¶ 5).
Swift suffered from seizures, which had been managed with a daily 300 mg dose
of the prescription drug Dilantin. (Id. ¶ 8). On February 8, 2010, Dr. Parnes increased
the dosage to 600 mg daily. (Id. ¶ 9). Swift claims that this was negligent, and that “as a
direct and proximate result of the increased dosage, Swift suffered negative repercussions
1
In addition to the Complaint (Docket No. 1), the facts are derived from (1) the defendant’s statement of undisputed facts, as contained in its memorandum in support of its motion to
dismiss (“Def. Mem.”) and the exhibits thereto (“Def. Ex.”) (Docket No. 19); and (2) the plaintiff’s opposition to the motion to dismiss (“Pl. Opp.”) and exhibits thereto (“Pl. Ex.”) (Docket
No. 22), as verified by the Affidavit of Oleh Podryhula, plaintiff’s counsel (Docket No. 23).
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including loss of balance, pain and suffering, hospitalization, a period of physical therapy
and financial loss.” (Id. ¶ 11). Swift went to the emergency room, and was subsequently
admitted into Cape Cod Hospital on June 26, 2010 as a result of “supratherapeutic
Dilantin levels.” (Pl. Ex. 1). She was discharged on June 29, 2010. (Id.). As detailed
below, she filed suit on February 6, 2013 against Dr. Parnes and Harbor Health.
The Status of Harbor Health
It is now undisputed that at the relevant time, Harbor Health was “a Federally
supported Health Center pursuant to the Federally Supported Health Centers Assistance
Act of 1995 (42 U.S.C. § 233(g)(n)).” (Def. Ex. B). As a result, Harbor Health and its
employees are “provide[d] liability protection under the Federal Tort Claims Act (FTCA)
for damage for personal injury, including death, resulting from the performance of
medical surgical, dental, and related functions[.]” (Def. Ex. A). The United States has
acknowledged that Dr. Parnes “was acting within the scope of her employment as an
employee of the United States at the time of the alleged incident.” (Def. Ex. B). Thus,
Harbor Health and Dr. Parnes “are deemed to be federal employees acting within the
scope of their employment for acts and omissions[.]” (Id.). Any claims of negligence
against Harbor Health and Dr. Parnes fall within the scope of the FTCA, 28 U.S.C.
§§ 1346(b) and 2671, et seq. Under the FTCA, a plaintiff may not maintain a tort action
unless the plaintiff first files an administrative claim within two years after the claim
accrued. See 28 U.S.C. § 2401(b). No such claim was filed in the instant case. (Def. Ex.
C at ¶ 4).
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Efforts to Identify the Status of Harbor Health
In the instant case, plaintiff contends that an adequate search was done in order to
uncover information about whether Harbor Health was a federal facility, and since the
search did not reveal such a status the doctrine of equitable tolling should apply.
Specifically, plaintiff points to the fact that she requested her medical records on June 13,
2012, and that neither the request form from Mid-Upper Cape Community Health Center
nor the medical reports she received revealed the federal affiliation. (See Pl. Exs. 1, 2,
3). The plaintiff also has submitted information counsel received from the Commonwealth of Massachusetts Secretary of State’s Office identifying the status of Harbor
Health Services, Inc. as a nonprofit corporation, and identifying its officers and directors.
(Pl. Ex. 4). The document is dated April 11, 2013. (Id.). It makes no reference to any
federal affiliation. This court notes, as detailed more fully below, that both of these
inquiries – for medical records and to the Secretary of State’s Office – were made more
than two years after the alleged malpractice on February 8, 2010.
It is undisputed that there was publicly available information which identified
Harbor Health as a federally affiliated entity. In particular, the Internet web site of
Harbor Health Services, Inc. provides as follows: “This health center is a Health Center
Program grantee under 42 U.S.C. 254B, and deemed a Public Health Service employee
under 42 U.S.C. 233(g)-(n).” (Pl. Ex. 5). Lists for the Health Center Program published
by the U.S. Department of Health and Human Services identify Harbor Health Services as
a federal health center. See http://bphc.hrsa.gov/uds/datacenter. Furthermore, a Westlaw
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search for Harbor Health Services, Inc. reveals a 2001 published decision of this court,
which expressly notes that “[p]ursuant to 42 U.S.C. § 233(g), Harbor Health [Services,
Inc.] was designated as a federally funded health care facility[.]” Moloney v. United
States, 204 F.R.D. 16, 16 (D. Mass. 2001). However, it is not disputed that Harbor
Health did not affirmatively advise plaintiff of its federal status. Nor, as noted above, did
plaintiff search for this type of information before suit was filed.
The Litigation
Swift commenced this action on February 6, 2013, by filing a complaint in
Barnstable Superior Court against Dr. Parnes and Harbor Health Services, Inc. The
action was removed to this court on July 11, 2013. On August 9, 2013, this court granted
defendant’s motion to substitute party. Accordingly, it dismissed Dr. Parnes and Harbor
Health, and substituted the United States as the proper defendant. (Docket No. 10).
Under the FTCA, the exclusive remedy for the plaintiff in this case is against the United
States. See 28 U.S.C. § 2679.
Additional factual details relevant to this court’s analysis are described below
where appropriate.
III. ANALYSIS
“Pursuant to the FTCA, a tort claim against the United States is ‘forever barred’
unless it is presented in writing to the appropriate federal agency within two years after
the claim accrues.” Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002) (citing
28 U.S.C. § 2401(b)). “Accordingly, it is well-settled than an FTCA claim must be
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dismissed if a plaintiff fails to file a timely administrative claim.” Id., and cases cited. In
the instant case, it is undisputed that Swift never filed an administrative claim prior to
filing suit. Therefore, “pursuant to the two-year statute of limitations, the claim is timebarred.” Id.
Swift, like the plaintiff in Gonzalez, asks that this court excuse her failure to file
an administrative claim. As the court in Gonzalez described when addressing the same
argument the plaintiff has presented here:
[the plaintiff] argues that this court should equitably toll the statute
of limitations because she did not know, and could not have known,
that the defendants were federal employees. Without this
knowledge, she was unaware that the FTCA’s two-year statute of
limitations applied to her case, and thought instead that she must file
her claim within the three years allowed under Massachusetts law.
Mass. Gen. Laws ch. 260, § 2A (2000).
Gonzalez, 284 F.3d at 291. The Gonzalez court “reject[ed] this argument.” Id. This
court must reach the same conclusion.
An extended discussion is not necessary in light of the recent First Circuit decision
of Sanchez v. United States, 740 F. 3d 47 (1st Cir. 2014). It is undeniable that “[t]he
FTCA’s two-year bar for presenting claims creates a trap for the unwary who fail to
recognize its applicability to a specific case and thus fail to act at all within two years of
accrual, or who sue in time but fail to first present the claim to the appropriate federal
agency.” Id. at 50. This “trap for the unwary” “arises because doctors who work at
facilities that may appear to be nongovernmental may nevertheless be deemed federal
employees because of the manner in which their employers receive federal funds.” Id. at
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54. While the First Circuit has assumed, without deciding, that equitable tolling may be
available to toll the running of the FTCA’s limitations period, it has nevertheless
concluded that attorneys have an affirmative obligation to investigate whether the
doctor/facility at issue are governed by the FTCA. See id. at 54-55. The Court has
concluded that “[i]t’s not asking too much of the medical malpractice bar to be aware of
the existence of federally funded health centers that can be sued for malpractice only
under the Federal Tort Claims Act[.]” Id. at 55 (quoting Arteaga v. United States, 711
F.3d 828, 834-35 (7th Cir. 2013)).
The facts presented in Sanchez are very similar to those presented here. In that
case, as here, there was nothing in the patient’s medical records which indicated that a
federal facility was involved, and the hospital had not affirmatively disclosed its status.
Id. In addition, as here, there appeared to be no evidence that the specific doctors
involved were working for a public employer. Id. Nevertheless, while recognizing that
“the federal government could do more to publicize or alleviate the statute of limitations
trap created by section 233[,]” the First Circuit declined to excuse the plaintiff from the
obligation to affirmatively seek out the information. Id. at 56. In Sanchez, like the
instant case, there was information on the website of the Department of Health and
Human Services that would have disclosed the status of the doctors’ employer (although
the information “was hardly conspicuous”), and a Lexis or Westlaw search would have
revealed another FTCA case against the defendants. Id. at 55-56. The First Circuit
determined that this information would have been sufficient to put counsel “on at least
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heightened inquiry notice regarding the treating doctors’ deemed-federal status” if a
search had, in fact, been conducted. Id. at 55. In the absence of any affirmative actions
by the defendants or government to mislead or thwart the plaintiff from ascertaining the
necessary information, the First Circuit found that equitable tolling was not applicable.
Id. This court has no choice but to reach the same conclusion.
Swift has attempted to distinguish the instant case from Sanchez on the grounds
that her counsel did, in fact, do a search, although it was limited to the Secretary of
State’s Office. Under the facts of this case, however, this is a distinction without a
difference. Since the inquiry was not made until after the two year statute of limitations
had expired, the situation here is no different from one where the plaintiff failed to make
any inquiry at all. The First Circuit has consistently rejected the argument that being
“blamelessly ignorant” of the status of the potential defendants is insufficient to toll the
statute of limitations. As the Gonzalez Court held, in language applicable here,
“[a]lthough the plaintiff did not know the federal status of the defendants at the time of
her treatment, she and her attorneys had two years to ascertain the legal status of the
doctors and could easily have learned it.” Gonzalez, 284 F. 3d at 291-92. Failure to
make an inquiry within that time period constitutes “a clear lack of due diligence on the
part of the plaintiff and her attorneys.” Id. a 293. The facts presented here do not raise
the issue whether some research conducted during the statutory period prior to filing suit,
which did not reveal the federal status of the health care provider, would be sufficient to
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toll the statute of limitations.2 Here, in the absence of any timely research, Swift’s claim
is time-barred.
IV. CONCLUSION
For all the reasons detailed herein, the “Defendant’s Motion to Dismiss” (Docket
No. 18) is ALLOWED.
/ s / Judith Gail Dein
Judith Gail Dein
U.S. Magistrate Judge
2
This court does note that the Sanchez Court did acknowledge the Third Circuit case of
Santos ex rel. Beato v. United States, 559 F. 3d 189, 200 (3d Cir. 2009), where “counsel actually
ran a public records search on the relevant doctors’ employer” as a result of which the Court
tolled the statute of limitations. See Sanchez, 740 F.3d at 56-57. Nevertheless, despite the Third
Circuit decision, the First Circuit declined to “overrule our own controlling precedent here” to
apply equitable tolling.
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