Marks v. United States of America

Filing 15

ORDER Granting Defendant's 9 Motion to Dismiss and Dismissing Action With Prejudice. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENISE MARKS et al.,
Plaintiffs,

Case No. 16-cv-10231
Hon. Matthew F. Leitman

v.
UNITED STATES OF AMERICA,
Defendant.
_________________________________/

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (ECF #9)
AND DISMISSING ACTION WITH PREJUDICE
Plaintiffs Denise Marks (“Marks”) and her husband, La’Vince Marks, Jr.
(together, “Plaintiffs”), have brought this medical malpractice action under the
Federal Tort Claims Act (the “FTCA”), 28 U.S.C. § 1346(b). Plaintiffs allege that
Charlene Williams, M.D. (“Dr. Williams”), who is deemed a federal employee for
purposes of the FTCA, negligently performed surgery on Marks at St. John’s
Hospital and Medical Center in Detroit, Michigan (“St. John’s”). (See Compl. at
¶¶ 13-18, ECF #1 at 3-4, Pg. ID 3-4.)

The United States of America (the

“Defendant”) has now moved to dismiss Plaintiffs’ Complaint on the ground that it
is untimely under the FTCA (the “Motion to Dismiss”). (See ECF #9.) For the
reasons stated below, the Court GRANTS the Motion to Dismiss and DISMISSES
this action with prejudice.
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RELEVANT FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
In 2012, Dr. Williams was employed as a physician by Detroit Healthcare
for the Homeless d/b/a Advantage Health Center (“DHH”). (Compl. at ¶ 5, ECF
#1 at 2, Pg. ID 2.) DHH is funded by the Federally Supported Health Centers
Assistance Act of 1992 (see id.), and it provides health care to homeless
individuals at, among other places, the Thea Bowman Community Health Center in
Detroit (“Thea Bowman”). (See Notice of Intent, ECF #9-5 at 3, Pg. ID 91; ECF
#11-2 at 6, Pg. ID 132; hereinafter, the “NOI”.)1
From January 10 to March 14, 2012, Marks received medical care from Dr.
Williams at Thea Bowman. (See ECF #9-5 at 7, Pg. ID 95.) During this time
frame, Dr. Williams evaluated and treated Marks for certain gynecological
problems, including fibroids and menorrhagia. (See id.) Marks’ ailments were so
serious that they required surgery. On March 27, 2012, Dr. Williams performed a
total hysterectomy and right oophorectomy (removal of the right ovary) on Marks

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Plaintiffs referenced the NOI in the Complaint (see Compl. at ¶ 8, ECF #1 at 3,
Pg. ID 3), but did not attach it as an exhibit. The Defendant subsequently attached
the NOI to its Motion to Dismiss. In the context of a motion to dismiss, “if a
plaintiff references or quotes certain documents” in its complaint, “a defendant
may attach those documents to its motion to dismiss, and a court can then consider
them in resolving the Rule 12(b)(6) motion without converting the motion to
dismiss into a Rule 56 motion for summary judgment.” In re Omnicare, Inc. Sec.
Litig., 769 F.3d 455, 466 (6th Cir. 2014). Accordingly, the Court may consider the
NOI in resolving the Motion to Dismiss without converting the motion into one for
summary judgment. Moreover, Plaintiffs attached the NOI to their response to the
Motion to Dismiss (see ECF #11-2) and did not suggest that the Court could only
consider the NOI if it treated the motion as one for summary judgment.
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at St. John’s. (See Compl. at ¶ 13, 15, ECF #1 at 3-4, Pg. ID 3-4.) The next
evening, Marks reported “complications with significant pain and discomfort.”
(See id. at ¶ 18, ECF #1 at 4, Pg. ID 4.)
On or around April 3, 2012, Marks returned to St. John’s because her pain
had not subsided. (See Pls.’ Resp. Br., ECF #11 at 6, Pg. ID 119.) The next day,
Dr. Brian V. Guz, M.D. (“Dr. Guz”) performed a CT scan on Marks and saw that
Marks’ bladder was damaged. (See ECF #9-5 at 12, Pg. ID 100.) Dr. Guz then
performed a procedure in which he examined the lining of Marks’ bladder. He
discovered “[a] small hole . . . in the posterior aspect of the bladder that appeared
to be through and through.” (Id.) Dr. Guz then concluded that Marks would “need
a formal repair as an out-patient, likely with ureteral reimplantation.” (Id.)
Nearly two years later, on March 27, 2014, Plaintiffs sent a “Notice of
Intent” to file a medical malpractice action to Dr. Williams and to several medical
facilities at which Dr. Williams worked.2 (See NOI, ECF #11-2 at 2-4, Pg. ID 12830.) In particular, Plaintiffs sent the NOI to DHH, to Thea Bowman, and to Dr.
Williams in care of Thea Bowman. (See id.) In the NOI, Plaintiffs described
treatment that Marks received from Dr. Williams at Thea Bowman just prior to her

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Under Michigan law, before a plaintiff may file a medical malpractice action, she
must provide written “notice of intent to file a claim” to “the last known
professional business address or residential address of the health professional or
health facility who is the subject of the claim.” M.C.L. §§ 600.2912b(1)-(2); see
also Burton v. Reed City Hosp. Corp., 691 N.W.2d 424, 427-28 (Mich. 2005).
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surgery, and Plaintiffs asserted that Dr. Williams committed malpractice in
connection with the surgery. (See id. at 11-12, Pg. ID 137-38.)
On September 25, 2014, Plaintiffs filed a malpractice action against Dr.
Williams in the Wayne County Circuit Court. (See ECF #11-3 at 6-16, Pg. ID 16171.)

Plaintiffs alleged that Dr. Williams negligently performed the surgical

procedure upon Marks. (See id.)
On May 26, 2015, Dr. Williams removed the action to this Court on the
ground that “at all times relevant to [the] matter, [she] was an employee of Detroit
Healthcare for the Homeless d/b/a Advantage Health Centers (“DHH”) which has
been deemed eligible for coverage under the [FTCA] . . . .” (See ECF #11-3 at 2,
Pg. ID 157; hereinafter, the “Notice of Removal”.) Dr. Williams asserted that she
was deemed a federal employee under 42 U.S.C. § 233(g) and, therefore, that “a
claim against the United States pursuant to the FTCA [was] the exclusive remedy
available to the plaintiffs . . . with respect to the alleged acts or omissions” of Dr.
Williams. (Id. at 3, Pg. ID 158.)
After removing the action, Dr. Williams filed a motion to dismiss on the
ground that Plaintiffs failed to exhaust their administrative remedies by filing a
claim with the Department of Health and Human Services (“DHHS”), as required
by the FTCA, 28 U.S.C. § 2675(a). (See ECF #9-3.) This Court granted Dr.
Williams’ motion and dismissed the action without prejudice. (See ECF #11-4.)
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Plaintiffs then filed an administrative claim with DHHS seeking
$522,654.63 in damages. (See ECF #9-5 at 1, Pg. ID 89.) After six months had
passed without a final determination from DHHS, Plaintiffs treated DHHS’s lack
of response as a denial of their claim under 28 U.S.C. § 2675(a). Plaintiffs then refiled their Complaint in this Court on January 26, 2016. (See ECF #1.)
On May 12, 2016, the Defendant filed the Motion to Dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. (See ECF #9). In the Motion to
Dismiss, the Defendant argues that Plaintiffs’ medical malpractice claim is timebarred because Plaintiffs did not comply with the FTCA’s two-year statute of
limitations.
The Court held a hearing on the Motion to Dismiss on August 11, 2016.
GOVERNING LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a
complaint when a plaintiff fails to state a claim upon which relief can be granted.
“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when a
plaintiff pleads factual content that permits a court to reasonably infer that the
defendant is liable for the alleged misconduct. Id. (citing Twombly, 550 U.S. at
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556). When assessing the sufficiency of a plaintiff’s claim, a district court must
accept all of a complaint’s factual allegations as true. See Ziegler v. IBP Hog Mkt.,
Inc., 249 F.3d 509, 512 (6th Cir. 2001). “Mere conclusions,” however, “are not
entitled to the assumption of truth.

While legal conclusions can provide the

complaint’s framework, they must be supported by factual allegations.” Iqbal, 556
U.S. at 664.

A plaintiff must therefore provide “more than labels and

conclusions,” or “a formulaic recitation of the elements of a cause of action” to
survive a motion to dismiss. Twombly, 550 U.S. at 556. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”
ANALYSIS
A.

The FTCA Framework and Plaintiffs’ Failure to Timely File Their
Claim Thereunder
The FTCA “provides that a suit against the United States shall be the

exclusive remedy for persons who wish to bring claims for damages resulting from
negligent acts of federal employees committed within the scope of their
employment.” Sykes v. United States, 507 Fed. App’x 455, 460 (6th Cir. 2012);
see also Miller v. United States, 229 F.3d 1153, 2000 WL 1140726, at *2 (6th Cir.
2000) (Table) (citing 42 U.S.C. § 233(a)).
Before filing a civil action under the FTCA, an injured person must first file
a tort claim with “the appropriate Federal agency;” the person may not file a civil
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action asserting the claim until the claim has been “finally denied by the agency in
writing . . . .” 28 U.S.C. § 2675(a); see also Miller, 2000 WL 1140726, at *2. The
injured person must present her tort claim to the proper federal agency in writing
within two years after it accrues, or she is “forever barred” from pursuing the claim
in a civil action. 28 U.S.C. § 2401(b). A medical malpractice claim accrues under
28 U.S.C. § 2401(b) when “a plaintiff [is] in possession of the critical facts that
[s]he has been hurt and who has inflicted the injury.” United States v. Kubrick,
444 U.S. 111, 122 (1979).
Under limited circumstances, a tolling provision of the FTCA allows an
injured party to file a civil tort action even where the party has failed to present the
claim to the appropriate federal agency within two years of accrual:
Whenever an action or proceeding in which the United
States is substituted as the party defendant under this
subsection is dismissed for failure first to present a claim
pursuant to section 2675(a) of this title, such a claim shall
be deemed to be timely presented under section 2401(b)
of this title if –
(A) the claim would have been timely had it
been filed on the date underlying the civil
action was commenced, and
(B) the claim is presented to the appropriate
Federal agency within 60 days after
dismissal of the civil action.
28 U.S.C. § 2679(d)(5).

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To their credit, Plaintiffs candidly acknowledge that their claim arising out
of Dr. Williams’ alleged malpractice is subject to the FTCA’s procedural
requirements and two-year limitations period; that they failed to timely present the
claim to the appropriate federal agency within two years after it accrued; and that
they are not entitled to statutory tolling under the above-quoted tolling provision of
the FTCA. (Pls.’ Resp. Br., ECF #11 at 4-5, Pg. ID 122-23.) But Plaintiffs
nonetheless insist that the Court should permit them to pursue their claim.
Plaintiffs argue that the Court should equitably toll the two-year limitations period
that would otherwise bar their claim. For the reasons explained below, the Court
declines to do so.
B.

Equitable Tolling
In United States v. Kwai Fun Wong, __ U.S. __, 136 S. Ct. 1625, 1638

(2015), the Supreme Court held that “the FTCA’s time bars are nonjurisdictional
and [are] subject to equitable tolling.” However, courts apply equitable tolling
“sparingly” in the FTCA context and do not equitably toll the FTCA’s limitations
period “when there has only been a garden variety claim of excusable neglect.”
Bazzo v. United States, 494 Fed. App’x 545, 547 (6th Cir. 2012) (quoting Chomic
v. United States, 377 F.3d 607, 615 (6th Cir. 2004)); see also Kwai Fun Wong, 135
S. Ct. at 1630-31 (equitable tolling is available “when a party has pursued his

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rights diligently but some extraordinary circumstance prevents him from meeting
a deadline.” (emphasis added)).
The party seeking equitable tolling “bears the burden of proving entitlement
to it.” Bazzo, 494 Fed. App’x at 547 (quoting Robertson v. Simpson, 624 F.3d 781,
784 (6th Cir. 2010)). The United States Court of Appeals for the Sixth Circuit
considers the following five factors when determining whether equitable tolling is
available to a plaintiff under the FTCA:
(1) the plaintiff’s lack of notice of the filing requirement;
(2) the plaintiff’s lack of constructive knowledge of the
filing requirement; (3) the plaintiff’s diligence in
pursuing her rights; (4) an absence of prejudice to the
defendant; and (5) the plaintiff’s reasonableness in
remaining ignorant of the particular legal requirement.

Jackson v. United States, 751 F.3d 712, 719 (6th Cir. 2014).
Plaintiffs have failed to show that they are entitled to equitable tolling under
the five factors listed above. Indeed, Plaintiffs’ response to the Motion to Dismiss
neither mentions the controlling five-factor test nor attempts to explain how the
factors weigh in favor of equitable tolling here.
And the allegations in Plaintiffs’ Complaint do not warrant an equitable
tolling of the limitations period. The Complaint contains only a single allegation
with respect to equitable tolling: “That Plaintiff had no knowledge that Dr.
Williams was deemed a federal employee until the state action was removed to
federal court and had no reasonable way of discovering [the] same prior to the
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filing of the state court action.” (Compl. at ¶ 7, ECF #1 at 3, Pg. ID 3.) This
conclusory allegation is insufficient to support equitable tolling because it says
nothing about Plaintiffs’ efforts to determine whether Dr. Williams was (or would
be deemed to be) a federal employee. See Sanchez v. United States, 932 F. Supp.
2d 229, 232 (D. Mass. 2013), aff’d 740 F.3d 47 (1st Cir. 2014) (declining to apply
equitable tolling because plaintiff failed to show “that he made any inquiry at all
into the potential status of the defendant doctors as federal employees or that such
information was concealed from him or his counsel.”).
Instead of applying, or presenting evidence concerning, the five equitable
tolling factors, Plaintiffs offer the following argument:
The doctrine of equitable tolling should be applied in the
case at bar. Plaintiffs filed the NOI required under
Michigan law on March 27, 2014. MCL 600.2912b. As
the NOI demonstrates, Dr. Williams was associated with
numerous facilities and it was not clear which was her
employer at the time of the treatment at issue, especially
as that treatment was provided at St. John Hospital, a
non-federally funded facility. (Ex 1). Plaintiffs had no
way of ascertaining that Dr. Williams was a federal
employee. Indeed, Dr. Williams herself did not ascertain
that she was a federal employee at the time in question
until eight months (the time between the NOI and the
Notice of Removal) after Plaintiffs filed their NOI. (Ex 1;
Ex 2). The Complaint was promptly filed after the
expiration of the prescribed notice period. MCL
600.2169b. Thus, Plaintiffs diligently pursued their
rights, but some extraordinary circumstance prevented
them from complying with the prescribed deadline. As
such, equitable tolling should be applied in this matter,
and Defendant’s motion to dismiss must be denied.
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(Pls.’ Resp. Br., ECF #11 at 6, Pg. ID 124; emphasis in italics added and emphasis
in underlining in original.)
There are several problems with this argument. First, Plaintiffs’ assertion
that they had “no way” to ascertain whether Dr. Williams would be deemed a
federal employee for purposes of Marks’ medical malpractice claim is not
accurate. Plaintiffs and their counsel knew that Dr. Williams worked at Thea
Bowman; that Dr. Williams had treated Marks at Thea Bowman shortly before
Marks’ surgery; and that the pre-surgery treatment at Thea Bowman related to the
same condition for which Dr. Williams performed the surgery. (See NOI, ECF #95 at 7-8, Pg. ID 95-96.) From this information, Plaintiffs could have discovered
that Dr. Williams would be deemed a federal employee with respect to her
treatment of Marks. As several federal courts have noted, “the Public Health
Service operates a website that identifies all health centers that receive federal
funds and thus can only be sued under the FTCA.” Blanche v. United States, 811
F.3d 953, 962 (7th Cir. 2016); see also Sanchez v. United States, 740 F.3d 47, 5455 (1st Cir. 2014). Had Plaintiffs or their counsel consulted that website, they
would have discovered that Thea Bowman receives federal funds and that Thea
Bowman’s health care providers, including Dr. Williams, could thus be deemed
federal employees for FTCA purposes.

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Second, Plaintiffs neither allege in their Complaint nor offer evidence that
Dr. Williams did not know that she was a federal employee. Instead, Plaintiffs
direct the Court to the NOI and to Defendant’s Notice of Removal. (Pls.’ Resp.
Br., ECF #11 at 6, Pg. ID 124.) But neither of those documents is authored by, nor
reports statements made by, Dr. Williams. The documents thus say nothing about
Dr. Williams’ knowledge of her employment status.
Finally, Plaintiffs have not cited any decision in which any federal court has
applied equitable tolling to an FTCA claim under circumstances like those
presented here. Notably, the Sixth Circuit has declined to apply the doctrine under
these circumstances. See Bazzo, 494 Fed. App’x at 547-48. In Bazzo, Amanda
Bazzo claimed that her minor daughter, M.B., sustained injuries while Bazzo was
giving birth to her at Alpena General Hospital. Bazzo claimed that the attending
physician, Dr. Christa Williams, negligently caused M.B.’s injuries. “Though
Bazzo did not know at the time, Dr. Williams was an employee of Alcona Citizens
for Health, Inc., a federally-funded medical facility.” Id. at 547.
Bazzo eventually filed a medical malpractice action against Dr. Williams
under the FTCA. Bazzo conceded that she failed to comply with the FTCA’s twoyear limitations period, but she argued that that period should have been equitably
tolled because she could not reasonably have discovered Dr. Williams’ status as a
federal employee. Bazzo highlighted that “none of the procedures or medical
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records linked Dr. Williams to Alcona, as opposed to the [non-federal] medical
facilities where the procedures took place.” Id. The district court declined to
equitably toll the FTCA’s limitations period, and the Sixth Circuit affirmed.
The Sixth Circuit explained that the district court properly declined to toll
the statute of limitations because “the absence of records identifying Alcona [did]
not undermine the district court’s core findings: (1) a sufficient opportunity to
investigate Dr. Williams’s employment status, and (2) the absence of efforts to
conceal that information.” Id. at 548. The Sixth Circuit further emphasized that
Bazzo did “not detail what steps counsel took to determine Dr. Williams’s
employment status and, thus, [did] not explain how her affiliation with federally
funded Alcona would have eluded a reasonably diligent party.” Id.
The Plaintiffs here are in much the same position as the plaintiff in Bazzo.
They have not alleged any specific facts showing that they lacked a sufficient
opportunity to investigate Dr. Williams’ employment status or that anyone made
any effort to conceal that status. Nor have they alleged what steps, if any, they
took to investigate Dr. Williams’ employment status. And in at least one respect,
Plaintiffs’ position here is far weaker than that of the plaintiff in Bazzo. Unlike the
plaintiff there, the Plaintiffs here did have medical records connecting Dr.
Williams to a federally-funded facility and establishing that Dr. Williams treated
Marks at that very facility for the condition that led to her surgery. Since the
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plaintiff in Bazzo was not entitled to equitable tolling, the Plaintiffs here are not
entitled to such tolling. See id.; see also A.Q.C. ex rel. Castillo v. United States,
656 F.3d 135, 145 (2d Cir. 2011) (declining to apply equitable tolling where
plaintiff’s counsel failed to “investigate the federal nature of potential defendants”
because such an investigation is “part of standard due diligence in every medical
malpractice case.”)
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that the
Defendant’s Motion to Dismiss (ECF #9) is GRANTED and this action is
DISMISSED WITH PREJUDICE.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 26, 2016
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on August 26, 2016, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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