Camerano v. Woo et al.
Filing
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Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. Defendant's motion to dismiss, treated as a motion for summary judgment, is GRANTED. Plaintiff's motion for leave to amend is DENIED. (Maynard, Timothy)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________________
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PETER CAMERANO, Personal Representative )
of the Estate of Patrick Camerano,
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Plaintiff,
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v.
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UNITED STATES of AMERICA,
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Defendant.
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___________________________________________)
Civil Action No.
15-13075-FDS
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND PLAINTIFF’S MOTION FOR LEAVE TO AMEND
SAYLOR, J.
This is an action for negligence and wrongful death under the Federal Tort Claims Act,
28 U.S.C. §§ 2671 et seq. Plaintiff Peter Camerano is the personal representative of the estate of
Patrick Camerano, his late father. The complaint alleges that negligence by personnel employed
by the East Boston Neighborhood Health Center (“EBNHC”), a federal facility, resulted in the
death of Patrick Camerano.
The complaint was filed on August 3, 2015. It named as defendants East Boston
Neighborhood Health Center Corporation; East Boston Neighborhood Health Center; and
various individual healthcare providers. In November 2015, defendants moved to dismiss the
claims against the individual defendants and for an order deeming this action to be an action
against the United States because the individual defendants were federal employees at the time of
the alleged acts.
On February 8, 2016, the Court allowed the substitution of the United States as defendant
in place of the individually named defendants pursuant to 28 U.S.C. § 2679(d). The United
States has now moved to dismiss the claim on the ground that plaintiff failed to file an
administrative claim within two years as required by the FTCA. Plaintiff has opposed the
motion and has filed a motion to amend to add a new claim against a former individual
defendant.
At oral argument, the parties agreed that the motion to dismiss should be converted to a
motion for summary judgment. For the reasons described below, defendant’s motion for
summary judgment will be granted, and plaintiff’s motion to amend will be denied.
I.
Background
A.
Factual Background
Except where otherwise noted, the following facts are either undisputed or taken in the
light most favorable to the plaintiff.
Peter Camerano is the son of the late Patrick Camerano and the personal representative of
his estate. (Camerano Aff. ¶ 1–2). As of January 2012, Patrick was a residing at Eastpointe
Nursing Home after a surgery. (Id. at ¶ 6). In February, Patrick was transferred from Eastpointe
Nursing Home to EBNHC for medical management, caregiver respite, and medication
management. (Am. Compl. ¶ 11). EBNHC personnel were made aware that Patrick had a recent
history of a left hip fracture and a fall. (Id. at ¶ 13). According to the complaint, EBNHC did
not provide Camerano with “interventions or plans for limiting his wandering behavior.” (Id. at
¶ 17). The complaint further alleges that EBNHC did not provide “a safety plan including proper
monitoring by staff and proper motion sensing alarm systems.” (Id. at ¶ 18).
On February 26, 2012, at approximately 3:00 a.m., Patrick was walking in the hall of
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EBNHC. (Id. at ¶ 21). While in the hall, Patrick fell and struck the back of his head. (Id. at
¶ 20). The fall was not witnessed. More than 24 hours after the fall, Patrick showed signs of
distress and was hospitalized at the Boston Medical Center on February 27, 2012. (Id. at ¶ 24).
About February 28, Peter received a call from a nurse at EBNHC who told him that his father
had an accident and had been hospitalized. (Camerano Aff. ¶ 10). When Peter asked what
happened, the nurse said that Patrick had fallen, but she was “not totally sure.” (Id.).
At the hospital, doctors diagnosed a subdural hematoma, (Am. Compl. ¶ 25), which they
determined was likely inoperable on account of Patrick’s advanced age, (Id. at ¶ 26). Peter
conferred with the doctors and decided not to proceed with an operation, but to move Patrick to
palliative care. (Def. Mem. Ex. 5). Patrick was discharged and taken to hospice care at
Eastpointe Nursing Home, where he died on March 1, 2012. (Camerano Aff. ¶ 13). The cause
of death was listed on the death certificate as a “subdural hemorrhage” that resulted from an
“unwitnessed fall” at a “respite facility” at “26 Sturgis Street, Winthrop, MA.” (Def. Mem.
Ex. D).
In June 2012, Peter requested medical records from EBNHC. (Pl. Mem. Ex. 1 ¶ 15).
According to Peter, he did so “not knowing where my father was when he was injured.” (Id.).
He further stated that “[a]fter reading the records, it was unknown to me what respite/nursing
home my late father was in when he was injured.” (Id. ¶ 16).
On August 29, 2012, Peter, along with counsel, signed a voluntary administration
statement for the Massachusetts Probate and Family Court. Among the listed assets of the
probate estate was a “[w]rongful death action regarding [a] nursing home facility.” (Pl. Mem.
Ex. 4).
On September 21, 2012, Peter Camerano became the administrator of Patrick’s estate,
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which “authorize[ed] him to obtain medical records concerning the care and treatment of the
deceased.” (Am. Compl. ¶ 29). Peter contends that he received “medical records concerning the
Defendant’[s] care of the deceased” on October 29, 2012. (Id. at ¶ 30). He further contends that
after reviewing the records with counsel he learned for the first time that the accident happened
at EBNHC. (Camerano Aff. ¶ 18).
B.
Procedural Background
On July 16, 2014, Peter filed an administrative complaint with the United States
Department of Human Health and Services. On August 3, 2015, he filed a complaint with this
Court. The complaint named as defendants East Boston Neighborhood Health Center
Corporation; East Boston Neighborhood Health Center; James Pedulla, M.D.; Diane M. Maraio,
L.P.N.; Pamela Woo, R.N.P.; Michelle Stimpson, R.N.; and Nancy Segal, R.N.P. On February
8, 2016, the Court dismissed the claims against the original defendants and substituted the United
States as the proper party.
The United States has moved to dismiss the complaint, contending, in substance, that the
FTCA claim was untimely because it was not filed within the two-year FTCA limitations period,
and that the only proper remedy available to plaintiff is through the FTCA. The government
submitted various documents outside the pleadings with its motion to dismiss. At the motion
hearing, the parties agreed that the Court could convert the motion into a motion for summary
judgment and that no further briefing or evidentiary submission was necessary. See Fed. R. Civ.
P. 12(d).
II.
Legal Standard
The role of summary judgment is to “pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
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822 (1st Cir. 1991) (internal quotation marks omitted). Summary judgment is appropriate when
the moving party shows that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Essentially, Rule 56[ ]
mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.’” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.
1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that
determination, the court must view “the record in the light most favorable to the nonmovant,
drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009). When “a properly supported motion for summary judgment is made, the adverse party
must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotations omitted). The non-moving party may
not simply “rest upon mere allegation or denials of his pleading,” but instead must “present
affirmative evidence.” Id. at 256-57.
III.
Analysis
The United States contends that the claims against it must be dismissed for failure to
present an administrative claim to the proper agency within the two-year presentment period
required by 28 U.S.C. § 2401(b).
A.
Count Two: Wrongful Death
1.
Claim Accrual
Peter Camerano filed an administrative tort claim with HHS on July 16, 2014. The claim
is therefore barred by the two-year limitations period of the FTCA if it accrued before July 16,
2012. See 28 U.S.C. § 2401(b). The negligence and wrongful death claims result from the
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circumstances around Patrick’s fall and subsequent death, which occurred between February 26
and March 1, 2012.
The claim is, in substance, a claim for medical malpractice. Generally, a claim for
medical malpractice or other tort accrues “at the time of the injury.” Donahue v. United States,
634 F.3d 615, 623 (1st Cir. 2011). However, under the “discovery rule,” a claim accrues when
the plaintiff “knows or reasonably should have known the factual basis for [the] claim; that is,
the existence of [the] injury and its cause.” Id.
In medical malpractice cases brought under the FTCA, “the ‘discovery rule’ may delay
accrual until a plaintiff knows (or reasonably should know) both that he is injured and what
caused his injury; it does not, however, postpone accrual until a potential plaintiff also learns that
his injury was negligently inflicted.” Sanchez v. United States, 740 F.3d 47, 52 (1st Cir. 2014).
For accrual to be delayed, “the factual basis for the cause of action must have been inherently
unknowable [that is, not capable of detection through the exercise of reasonable diligence] at the
time of the injury.” Id. (alteration in original)(quoting Gonzalez v. United States, 284 F.3d 281,
288-89 (1st Cir. 2002)). “Once a plaintiff knows of the injury and its probable cause, he/she
bears the responsibility of inquiring among the medical and legal communities about whether
he/she was wronged and should take legal action.” Id. (quoting Gonzalez, 284 F.3d at 289).
The discovery rule “incorporates an objective standard.” Id. It thus charges a plaintiff
not only with what he actually knew about his injury, but also with “what a reasonable person,
once fairly prompted to investigate, would have discovered by diligent investigation.” Litif v.
United States, 670 F.3d 39, 44 (1st Cir. 2012); Rakes v. United States, 442 F.3d 7, 20 (1st Cir.
2006) (noting that the court must determine “what such an investigation would likely have
revealed”).
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Accrual of a medical malpractice claim under the discovery rule is not delayed until the
plaintiff learns the full extent of his injury or that the allegedly negligent actor was a government
employee. See Gonzalez, 284 F.3d at 289; accord Skwira v. United States, 344 F.3d 64, 77 (1st
Cir. 2003).
a.
Knowledge of Injury
Peter does not dispute that he knew of Patrick’s injury as of March 1, 2012. Peter
contends that on or about February 28, 2012, he received a telephone call from a nurse at
EBNHC who told him that Patrick was hospitalized after he fell. (Camerano Aff. ¶ 10). He then
transferred Patrick to Easpointe Nursing Home where he died on March 1, 2012. (Id. at ¶ 13).
b.
Knowledge of Cause of Injury
Peter contends that he did not discover the “manner, location, and cause of death” until
October 2012. (Opp. Mem. at 5). He contends that the delay in discovery was because EBNHC
did not produce a complete set of records, and because Nurse Woo did not explain during the
February 28 telephone call where Patrick fell or under what circumstances the fall occurred.
(Opp. Mem. at 6). He further contends that his inability to discover the location of Patrick’s fall
prevented him from ascertaining the cause of the injury, and that the cause of injury was,
therefore, “inherently unknowable.” He alleges that it was only after he received a partial set of
medical records in October 2012 that he, along with counsel, was able to determine the name of
the facility in which Patrick’s injury took place. He contends that the accrual date for the claim
is thus October 29, 2012. 1
For a plaintiff to have acquired sufficient knowledge of the cause of injury to trigger
1
Peter’s claim that the matter was “inherently unknowable” until October 2012 is at least somewhat belied
by the fact that he signed a statement to the Probate Court on August 29, 2012, listing as an asset of the estate a
“[w]rongful death action regarding [a] nursing home facility.” (Pl. Mem. Ex. 4).
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accrual, the plaintiff must have had at least some knowledge of the injury. Cutting v. United
States, 204 F. Supp. 2d 216, 224 (D. Mass. 2002). However, the plaintiff has the burden to
investigate the matter if he has “some reason to suspect foul play.” Id. The burden on the
plaintiff is significant in cases where the injury is death. Id. Here, Peter knew that Patrick’s
death was a result of the fall and resultant head injury. Peter knew those facts no later than
March 1, 2012, and thus knew the cause of injury on that date. That date is therefore the date on
which the claim accrued.
Furthermore, and in any event, Patrick’s death certificate was issued on May 24, 2012.
(Def. Mem. Ex. 4). The death certificate indicates that Patrick’s cause of death resulted from an
injury sustained by an unwitnessed fall at a respite facility located at “26 Sturgis Street,
Winthrop, MA”—EBNHC’s address. (Id.). By May 24, 2012, Peter could have readily become
aware of the location of the injury and the fact that the fall had not been witnessed.
Thus, the accrual date is March 1, 2012, and in any event no later than May 24, 2012.
Peter “bore the responsibility of both inquiring among the medical and legal communities to
determine whether [he] had an actionable claim and bringing any such claim within the statutory
period.” Gonzalez v. United States, 284 F.3d at 290. He had two years in which to do so.
Because he did not bring a claim within that period, the claim is time-barred.
c.
Equitable Tolling
The doctrine of equitable tolling may apply when a plaintiff cannot discover facts
sufficient to plead a cause of action after exercising reasonable diligence. See Abdallah v. Bain
Capital, LLC, 752 F.3d 114, 120 (1st Cir. 2014). Peter contends that the location of Patrick’s fall
was unknowable until October 29, 2012 and, thus, the accrual date should be tolled. He further
contends that the accrual date should be tolled because defendant fraudulently concealed material
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facts, which caused the delay in filing.
For a claim of concealment to result in equitable tolling, the concealment must have been
fraudulent and deliberate. Bennett ex rel. Estate of Bennett v. United States, 429 F. Supp. 2d
270, 281 (D. Mass. 2006). Here, Peter contends that EBNHC fraudulently and deliberately
concealed material information when EBNHC failed to disclose Patrick’s complete medical
records and to inform Peter of the facts concerning Patrick’s care. But there is no evidence of
actual concealment; for example, there is no evidence that documents were hidden or destroyed
or that false representations were made to plaintiff. Nor was the evidence inaccessible or
inherently unknowable. At most, Peter contends that “it was unknown to [him]” where the fall
had occurred after he read the EBNHC records in June 2012, and that Nurse Woo told him she
was “not totally sure what happened.” That evidence is a far cry from evidence of a fraudulent
and deliberate concealment. As set forth above, in the spring of 2012, Peter had sufficient
information to know of the nature of the injury, its cause, and its location. Therefore, the claim
of fraudulent concealment does not prevent the claim from being barred by two-year limitations
period of the FTCA.
B.
Count One: Negligence
The complaint alleges that EBNHC was negligent in its care for Patrick and that
negligence was the proximate cause of Patrick’s injuries and death. That claim is also brought
under the FTCA. Because the negligence claim accrued no later than May 24, 2012, the action is
time barred by the FTCA’s two year limitations period.
C.
Count Three: Breach of Implied Covenant
Peter contends that EBNHC breached the implied covenant of good faith and fair dealing
that is inherent in all contracts. He contends that breach of the implied covenant constitutes a
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cause of action against the United States through the so-called “Little” Tucker Act, 28 U.S.C. §
1346. He contends that Count Three is not time-barred because contract claims that are less than
$10,000 are not barred if they are filed within six years of the accrual date. Id.
The “Little” Tucker Act does not provide a cause of action here. In order to bring a claim
under that statute, the claim must be a contract claim “not sounding in tort.” 28 U.S.C. § 1346.
A claim for breach of contract “sound[s] in tort” when the breach relates to obligations that arise
from tort law and not a contractual agreement. See Phu Mang Phang v. United States, 388 F.
App’x 961, 963 (Fed. Cir. 2010). Furthermore, the statute does not establish a separate cause of
action; instead, the plaintiff must point to a substantive source of law that permits recovery of
money from the United States for the alleged injury.
Here, the complaint alleges that EBNHC had a “duty to provide reasonable, necessary
and competent services to the deceased under Massachusetts Law.” (Compl. ¶ 48). Peter further
contends that EBNHC breached the duty of care by failing to provide adequate staff to meet the
standard of care. These contentions do not arise from a contractual agreement, implied or
express; instead, they allege negligence. Thus, the underlying claim is a tort claim, not a
contractual claim.
Because Count Three alleges a claim “sounding in tort,” the claim is not properly brought
under the “Little” Tucker Act and must be brought under the FTCA, the exclusive remedy for
tort actions against the United States. See Stevens v. United States, 2013 WL 151715, at *3 (Fed.
Cl. Jan. 14, 2013) (“[T]his court does not possess jurisdiction over any kind of tort claim,
including claims ‘framed under non-tort law’ where ‘the essence of the claim lies in
tort.’”(citations omitted)). Count Three will therefore be dismissed.
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D.
Count Four: Violation of 42 U.S.C. § 1983
Count Four alleges that the conduct of EBNHC violated the standards set out in 42
U.S.C. § 1396r. 2 Peter further contends that EBNHC’s violation of 42 U.S.C. § 1396r
establishes a basis to bring a claim under 42 U.S.C § 1983. The § 1983 claim will be construed
as a Bivens claim, the federal analog to § 1983. 3
In order to bring a Bivens claim, the plaintiff must allege that the defendants (1) are
federal agents (2) who violated plaintiff’s constitutional rights (3) while acting under the color of
federal law. See Bivens v. Six Unknown Named Agens of Federal Bureau of Narcotics, 403 U.S.
388, 391-92 (1999). However, the FTCA is the exclusive remedy for any action against an
“employee of the Public Health Service while acting within the scope of his office or
employment . . . .” 42 U.S.C. § 233(a). The Supreme Court in Hui v. Castaneda interpreted
§ 233(a) as “grant[ing] absolute immunity to PHS officers and employees for actions arising out
of the performance of medical or related functions within the scope of their employment by
barring all actions against them for such conduct.” 559 U.S. 799, 806 (2010). Because the
FTCA is the exclusive remedy for a civil action against a Public Health Service employee, the
Court does not have jurisdiction to hear a Bivens claim asserted against EBNHC or Public Health
Service employees.
E.
Plaintiff’s Motion to Amend
In his opposition brief, Peter moved to add Nurse Woo as an individual defendant for the
Bivens claim. Fed. R. Civ. P. 15 provides that a party may amend its pleading only under certain
2
Title 42 U.S.C. §1396r(b)(1), (b)(2), (c), and (d)(4) establishes a standard of care nursing home facilities
must provide for patients.
3
A purported claim under § 1983 claim for violation of an individual’s constitutional rights should be
interpreted as a Bivens claim when the accused official is a federal official. See Hernandez-Cuevas v. Taylor, 723
F.3d 91 (1st Cir. 2013).
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circumstances. If the pleading is one to which a responsive pleading is required, a party may
amend its pleading as a matter of course within 21 days of the service of the responsive pleading
or service of a motion under Fed. R. Civ. P. 12, whichever is earlier. Fed. R. Civ. P. 15(1)(B).
After that time, “a party may amend its pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). In determining whether to grant a motion to amend, the Court must “examine the
totality of the circumstances and [ ] exercise its informed discretion in constructing a balance of
pertinent considerations.” Palmer v. Champion Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006)
(citing Quaker State Oil Ref. Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517 (1st Cir. 1989)).
However, leave to amend may be denied for several reasons, including, inter alia, “futility of
amendment.” U.S. ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009).
When considering an opposition to a motion to amend on the grounds that amending the
complaint would be futile, the court must apply the standard applicable to a motion to dismiss
under Fed. R. Civ. P. 12(b)(6). Hatch v. Dep’t for Children, Youth & Their Families, 274 F.3d
12, 19 (1st Cir. 2001); Kenney v. State Street Corp., 2011 WL 4344452, at *2 (D. Mass. Sept. 15,
2011). Whether a complaint should survive a motion to dismiss depends upon whether the
pleading satisfies the “plausibility” standard set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009),
and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A claim is plausible on its face if it
raises a right to relief beyond a speculative level by pleading enough “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. While the court will generally accept all well-pleaded factual
allegations in a complaint as true and draw all reasonable inferences in a plaintiff’s favor, id., the
Court will disregard any “legal conclusion[s] couched as . . . fact” or “[t]hreadbare recitals of the
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elements of a cause of action.” Ocasio-Hernadez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir.
2011) (quoting Iqbal, 556 U.S. at 678).
Peter contends that Nurse Woo violated his rights when she allegedly concealed material
facts during his telephone call with her, which caused a delay in the filing of the original
complaint. Nurse Woo, however, is a Public Health Service employee and was acting within the
scope of her duties at the time of the telephone call. (Def. Mem. Ex. B). For the reasons stated
above, a Bivens claim is not appropriate, and therefore the motion for leave to amend will be
denied as futile.
IV.
Conclusion
For the foregoing reasons, defendant’s motion to dismiss, treated as a motion for
summary judgment, is GRANTED. Plaintiff’s motion for leave to amend is DENIED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: July 7, 2016
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