Looten et al v. United States of America

Filing 20

ORDER entered by Judge Nanette Laughrey. Defendant's Motion to Dismiss [Doc. 9 ] is denied without prejudice.(Rosenbaum, Daniel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
STEPHANIE LOOTEN, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 2:15-cv-04121-NKL

ORDER
Plaintiffs Stephanie and Jon Looten, the surviving parents of Jasmine Looten, filed this
wrongful death lawsuit pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, et
seq., arising out of Jasmine Looten’s stillbirth death. Before the Court is Defendant United
States of America’s Motion to Dismiss [Doc. 9]. For the following reasons, the motion is
denied.

I.

Background 1
Due to a “double nuchal cord”—a condition where an infant’s umbilical cord wraps twice

around its neck—Jasmine Looten was delivered stillborn on January 14, 2011. At the time, Dr.
Lorraine Dodson, M.D. told Plaintiff Stephanie Looten that “these things happen,” and in doing

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These facts appear in the Lootens’ Complaint [Doc. 1]. For purposes of deciding
the United States’ motion to dismiss, the Court accepts the Lootens’ factual allegations as true
and construes them in the light most favorable to them. See Stodghill v. Wellston Sch. Dist.,
512F.3d 472, 476 (8th Cir. 2008).

so she implied “that [Jasmine’s death] was an unfortunate turn of luck that could not have been
prevented.” [Doc. 1, p. 3, ¶ 7].
In the months preceding Jasmine’s stillbirth, Stephanie Looten received pre-natal
consultation and treatment from Dr. Dodson and Dr. Brandi Nichols, M.D., both employees of
the Community Health Center of Central Missouri, a federally-supported medical facility. On
January 12, 2011, Dr. Dodson and Dr. Nichols elected to await Jasmine’s natural delivery rather
than inducing delivery or monitoring Stephanie in the hospital. When Dr. Dodson and Dr.
Nichols made this decision they “knew or should have known that [Stephanie Looten] had
reduced aminiotic fluid and that Jasmine was very growth-restricted.” [Doc. 1, p. 5, ¶ 23]. They
therefore should have monitored the pregnancy or induced delivery, either of which would have
prevented the double nuchal cord.
In light of their inaction, the Lootens allege that Dr. Dodson and Dr. Nichols were
negligent and that their employer, the United States, is liable for Jasmine’s wrongful death. 2
Because nuchcal cord is a common cause of stillborn deliveries, the Lootens claim they did not
and could not suspect a connection between the doctors and the death. Therefore they did not
have an obligation at the time of Jasmine’s death to further investigate the cause of the nuchcal
cord. [Doc. 1, p. 6, ¶ 29].
Instead, in the months following Jasmine’s stillbirth, Stephanie Looten continued to see
Dr. Dodson as she attempted to conceive another child. Dr. Dodson prescribed a course of
treatment with clomiphene citrate, a medication used to increase fertilization. On November 4,
2011, a pharmacist accidentally filled Stephanie Looten’s prescription for 50 milligrams of

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The Parties agree that federally-supported heath centers and their employees are
considered employees of the Public Health Service, an agency of the United States. See 42
U.S.C. § 233(a)-(n).
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clomipramine instead of 50 milligrams of clomiphene citrate.

Stephanie Looten took the

medication and suffered an adverse medical reaction, leading her to consult counsel about the
matter in April 2012. Around that time, the Lootens “advised [counsel] of Jasmine’s death and
questioned whether there may have been negligence leading to the death, considering the
negligence associated with the medication mix-up.” [Doc. 1, p. 8, ¶ 35].
In September 2012, the Lootens authorized their counsel to obtain medical records
regarding Jasmine’s care and delivery. Counsel received the records by October 2012 and sent
them to medical professionals for review. In November 2013, one such professional offered a
written opinion that Dr. Dodson and Dr. Nichols had provided Jasmine negligent care. The
Lootens filed suit in Missouri State court the following month, on December 30, 2013.
On April 24, 2014, the United States removed the case to federal court and moved to
dismiss, arguing that the Lootens had not first filed an administrative claim as required under the
FTCA. The Lootens voluntarily dismissed the case on May 6, 2014. They then submitted an
FTCA claim to the United States Department of Health and Human Services on July 15, 2014.
When the DHHS did not make a decision within six months, the Lootens elected to deem their
claim denied and filed this present lawsuit on June 3, 2015.

II.

Discussion
The Federal Tort Claims Act, 28 U.S.C. § 1346(b) and §§ 2671-2680, provides a limited

waiver of sovereign immunity for tort claims against the United States based on the acts or
omissions of government employees acting within the scope of their employment. Such claims
include those for personal injury resulting from medical care. 42 U.S.C. § 233(a). In these

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cases, FTCA coverage is exclusive of any other civil action against a United States employee.
Id.
An FTCA claim must be “presented in writing to the appropriate Federal agency within
two years after such claim accrues.” 28 U.S.C. § 2401(b). If a plaintiff does not file within this
period, his claim is “forever barred.” 42 U.S.C. § 233(a). See also Lehman v. Nakshian, 453
U.S. 156, 161 (1981) (noting that the FTCA permits a limited waiver of sovereign immunity, and
as such the “conditions upon which the government consents to be sued must be strictly
observed”).
The United States argues that the Lootens’ claim is forever barred under the FTCA’s
statute of limitations. It maintains that the claim accrued at the time of injury—Jasmine’s
death—and thus the statutory limitations period expired two years later, on January 14, 2013,
well before the Lootens submitted an administrative claim to the DHHS. 3
In response, the Lootens maintain that their claim did not accrue on the date of Jasmine’s
death because, at that time, they “could not have, and did not suspect that [Dr. Dodson and Dr.
Nichols’] omissions caused Jasmine’s death such that they should have begun asking questions
of other doctors.” [Doc. 15, p. 4]. The Lootens instead argue that the statute of limitations
began running in September 2012, when they first received Jasmine’s medical records, and
consequently the limitations period did not expire until September 2014.
The dispositive question before the Court is a narrow one: did the Lootens’ claim accrue
on January 14, 2011, at the time of Jasmine’s death, and if not, does the record show at what
point the FTCA statute of limitations began to run?
A. Jasmine’s Death; January 2011
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The Court is not discussing the Westfall savings provision because it was not raised by the Plaintiffs and
does not appear to apply on these facts.

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The United States argues that the claim accrued at Jasmine’s death because the Lootens
plainly knew Jasmine had suffered an injury, so they had an immediate duty to investigate the
cause. The Lootens respond that they were expressly told Jasmine died of natural causes by their
own doctors and therefore had no obligation to investigate their doctors’ involvement in the
death.
Generally, an FTCA claim accrues at the time of injury. Osborn v. United States, 918
F.2d 724, 731 (8th Cir. 1990). However, in medical malpractice cases, a plaintiff in “blameless
ignorance” of her injury is not held to this general accrual standard. United States v. Kubrick,
444 U.S. 111, 120 (1979). Instead, the statute of limitations begins when “the plaintiff actually
knew, or in the exercise of reasonable diligence should have known, the cause and existence of
his injury.” Wehrman v. United States, 830 F.2d 1480, 1483 (8th Cir. 1987). A plaintiff should
know the existence of an injury when she is “armed with the facts about the harm done to her,”
and at this point the plaintiff has a duty to investigate what caused the harm. T.L. ex rel. Ingram
v. United States, 443 F.3d 956, 961 (8th Cir. 2006). If the plaintiff neglects this duty despite
possessing information necessary to determine the injury’s cause, the statute of limitations
begins to run. K.E.S. v. United States, 38 F.3d 1027, 1029 (8th Cir. 1994) (“[I]f plaintiff fails to
act despite knowledge of the harm and its cause, defendant is entitled to the limitations
defense.”). When the plaintiff possesses necessary information is a context-specific question of
law. Slaaten v. United States, 990 F.2d 1038, 1041 (8th Cir. 1993) (“When the plaintiff knew or
should have known is a question of federal law, which the court must determine in light of the
surrounding circumstances.”).
The Lootens do not dispute that they knew about Jasmine’s death in January 2011. The
question is when, in light of Dr. Dodson’s comment, they should have known that the

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Defendants caused or contributed to cause Jasmine’s death. See Motley v. United States, 295
F.3d 820, 822 (8th Cir. 2002) (“In this case, plaintiffs obviously knew the fact of an injury—the
baby's death—no later than February 7, 1996, the date of the stillborn delivery. The issue is when
they knew or reasonably should have known that [the medical staff’s] prenatal care caused that
injury.”)
In Brazzell v. United States, 788 F.2d 1352 (8th Cir. 1986), the Eighth Circuit stated that
the plaintiff “ought to be charged with knowledge [of her injury’s cause] as soon as she could
have discovered [this] cause by asking a doctor.” Brazzell, 788 F.2d at 1356. The Lootens
presumably could have complied with this standard by asking doctors about Jasmine’s death in
as early as January 2011. Yet they did not do so because their doctor, who they trusted, had
already explained the cause herself. In this sense Brazzell is analogous. There, the district court
found that the plaintiff, who suffered from myalgia, was not under a duty to investigate whether
a vaccination had caused her condition. The Eighth Circuit affirmed. It noted that the plaintiff
“was advised by her doctor in January 1977 that the vaccination could not be the cause of her
continued suffering. In the face of this advice, it would be unfair to charge [plaintiff] with
reason to know differently.” Id.
Here it is likewise unfair to charge the Lootens with the duty to investigate further and
seek a different explanation for their daughter’s death when Dr. Dodson had directly explained
the death as the result of a known, natural cause. The Lootens, therefore, reasonably should not
have known the cause of injury in January 2011, and accordingly their claim did not accrue at
that time.
The United States, citing Motley, argues that this conclusion runs counter to Eighth
Circuit precedent. Motley also involved a medical malpractice claim arising out of a stillborn

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delivery. In that case, the plaintiffs’ daughter died at birth due to intrauterine fetal demise. The
plaintiffs argued that their cause of action did not accrue at the time of death because, even
though they were then aware of the immediate cause—intrauterine fetal demise—they were not
aware that this condition, in turn, was caused by negligent prenatal medical care. The Eighth
Circuit disagreed and affirmed the district court’s holding that the statute of limitations ran from
the baby’s death. At the time of delivery, it noted, the plaintiffs quickly suspected subpar
prenatal treatment and the attending medical personnel did not offer an explanation for why the
intrauterine demise occurred. The Eighth Circuit thus remarked that “[t]his is not a case where
[the hospital] staff attributed the baby's death to natural causes, as in Thompson v. United States,
642 F.Supp. 762, 763 (N.D. Ill. 1986).” Motley, 295 F.3d at 823.
Because Jasmine’s death was attributed to natural causes, it follows that the Lootens’
claim is distinguishable from Motley and analogous to Thompson. In Thompson, the plaintiff
brought an FTCA claim for medical malpractice after his wife died in a military hospital. The
plaintiff maintained that the claim did not accrue at his wife’s death because, at that time, doctors
and nurses told him she had died solely of lupus, a natural cause.

The District Court for the

Northern District of Illinois agreed. It concluded that where a death is plausibly explained by a
natural cause such as lupus, “there is initially no reasonable basis for supposing the doctors did
not provide adequate and proper medical care.” Thompson, 642 F.Supp. at 768. Finding such
basis would only “encourage or reward simple paranoia.” Id.
The Court finds this reasoning persuasive. Requiring patients to seek alternative causes
of their injuries when they believe they already know the actual cause does not meaningfully
serve Section 2401(b)’s purpose of protecting the United States from stale claims. See United

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States v. LePatourel, 593 F.2d 827, 832 (8th Cir. 1979). This outcome would merely encourage
distrust of one’s own physician.
The United States also relies on T.L ex rel. Ingram v. United States, 443 F.3d 956 (8th
Cir. 2006), and Flores v. United States, 689 F.3d 894 (8th Cir. 2012). Yet in each of these cases,
the plaintiff had strong reason to suspect a suspicious cause behind the manifested injury, and
was in fact actively investigating that cause at or around the time the injury occurred. See T.L. ex
rel. Ingram, 443 F.3d at 961 (plaintiff’s claim accrued the day after her daughter was born
because, even though she did not yet know the daughter would develop cerebral palsy, she was
contemplating legal action, knew the daughter had suffered brain damage, and hired an attorney
days later); Flores, 689 F.3d at 902 (plaintiffs, the husband and uncle of a woman who died
while in custody, retained counsel and sought medical records even before the woman’s death;
their claim accrued on the date of death). The facts alleged by the Lootens present a very
different fact pattern. There is no evidence that they had even a suspicion or hunch of
wrongdoing until April 2012. Therefore their claim did not accrue in January 2011 at Jasmine’s
stillbirth.
B. The Lootens’ Suspicions; April 2012
The Lootens state in their Complaint that “in or about April, 2012, [they] consulted [their
attorneys] regarding the medication mix-up, and later advised [them] of Jasmine’s death and
questioned whether there may have been negligence leading to the death, considering the
negligence associated with the medication mix-up.” [Doc. 1, pp. 7-8, ¶ 35]. Pointing to this
language, the United States argues that their claim necessarily accrued by the time these
suspicions arose. It asserts that “the Lootens admit that they suspected as early as November of
2011 that Drs. Dodson’s and Nichols’ prenatal care may have caused the death,” and therefore

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the Lootens were on notice to investigate the cause of Jasmine’s death at that time. [Doc. 19, p.
4].
In determining whether a plaintiff “should have known” he has an FTCA claim, a court
will apply an objective standard: it will ask whether a reasonable plaintiff would have known
about the injury and its cause. Garza v. U.S. Bureau of Prisons, 284 F.3d 930, 935 (8th Cir.
2002) (noting that “[t]he assessment of whether a plaintiff has acted reasonably is an objective
one”). In other words, if the causal connection is not actually known by a plaintiff, the statute of
limitations begins to run when a “. . . reasonably diligent person . . . reacting to any suspicious
circumstances . . . would have discovered” that the defendants caused the injury. Id. at 935.
Garza further clarified that “[w]hen catalytic circumstances prescribe, a plaintiff must exercise
reasonable diligence in inquiring into the injuries cause.” Id. See also Motley, 295 F.3d at 823
(finding the claim accrued when plaintiffs strongly suspected substandard care, which an
independent doctor could have confirmed).
Considering the facts as alleged in their Complaint, the Lootens had “question[s]” around
April 2012, when they asked counsel whether Jasmine might have received negligent prenatal
care. [Doc. 1, p. 8, ¶ 35]. The Lootens do not allege that they knew the cause of Jasmine’s
injury at that time. Nor are there any facts stating why the Lootens had questions about
Jasmine’s death at that time. There is no evidence that the Lootens had received additional
information about Jasmine’s death since January 14, 2011. The mistake that led them to consult
an attorney involved a medication prescribed by Dr. Dotson, but that episode does not appear to
suggest any negligence on Dr. Dotson’s part and there is no apparent connection between the
prescription episode and the facts or circumstances that preceded Jasmine’s death.

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Further, even if the Lootens’ inquiry to their attorney in April 2012 is evidence of a
suspicion that can be characterized as a “catalytic circumstance,” the Lootens were only
obligated to conduct a reasonable investigation. At this stage the record lacks sufficient evidence
to determine if their investigation was reasonable.
Likewise, at this stage the Court cannot agree with the Lootens’ argument that the statute
of limitations started running in September 2012, the month the Lootens requested and began
receiving Jasmine’s medical records.

There is no explanation why there was a delay in

requesting the medical records or why it took that amount of time to get the medical records. If
their investigation was not reasonable, the statute of limitations could be triggered at an earlier
date. Nor is there evidence that the medical records contain evidence that that a reasonable
person would require in order to see the causal connection between the death of Jasmine and Drs.
Dodson and Nichols’ treatment. The law is clear that the statute of limitations is not delayed
merely because a plaintiff does not know a federal official was negligent. Rather the inquiry is
about whether the federal official caused the injury. See United States v. Kubrick, 444 U.S. 111,
120 (1979). Given the current status of the record, there is too little evidence to answer these
questions.
It would appear that the Defendant has the burden to establish its affirmative defense.
Because there is not enough evidence in the record to resolve that affirmative defense, the Court
must presently deny the United States’ Motion to Dismiss.

III.

Conclusion
For the foregoing reasons, the United States of America’s Motion to Dismiss [Doc. 9] is

DENIED without prejudice.

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s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: November 4, 2015
Jefferson City, Missouri

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