A.E.F., An Infant et al v. United States of America et al

Filing 18

DECISION AND ORDER DENYING Defendant's 11 Motion to Dismiss; DIRECTING Defendant United States to file an answer within 21 days of the filing date of this decision. Signed by William M. Skretny, Chief Judge on 5/30/2014. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
A.E.F., an Infant, et al.,
Plaintiffs,
v.

DECISION AND ORDER
13-CV-285S

UNITED STATES OF AMERICA
and SATYA SAHUKAR,
Defendants.

I. INTRODUCTION
In this action, Plaintiffs allege under the Federal Tort Claims Act (“FTCA”) that
Defendants were negligent in their medical treatment of A.E.F. at the time of A.E.F.’s birth
and in subsequent treatment. Presently before this Court is Defendant United States’
Motion to Dismiss Plaintiffs’ complaint for lack of subject-matter jurisdiction, pursuant to
Rule 12 (b)(1) of the Federal Rules of Civil Procedure. For the following reasons,
Defendant’s motion is denied.
II. BACKGROUND
A.

Facts
Plaintiffs are A.E.F., an infant, and her parents, W.E.F. and K.D.F. (Complaint,

Docket No. 1, ¶¶ 2-4.) Defendants are the United States and Satya Sahukar. The United
States is a defendant because Oak Orchard Community Health Center, Inc. (“Oak
Orchard”), where A.E.F. received medical treatment, is a federally-funded medical facility.
(Compl., ¶¶ 5-7.) Defendant Satya Sahukar is a pediatrician duly licensed to practice
medicine in New York. (Compl., ¶ 7.)
Plaintiffs allege that A.E.F. was a patient at Oak Orchard from her birth, in August

2005, until November 9, 2005. (Compl., ¶ 9.) A.E.F. then became Dr. Sahukar’s patient
between November 10, 2005, and August 13, 2007. (Compl., ¶ 10.)
A.E.F. was born through a Frank breech vaginal delivery.1 (Compl., ¶ 13.) Initially,
A.E.F. reached developmental milestones, for example, sitting up at six months and
walking at 14 months. (K.D.F. Affidavit, Docket No. 15-1, ¶ 11.) But when A.E.F. reached
20 months, A.E.F.’s parents noticed that A.E.F. waddled when walking and had a slightly
curved lower back. (Id. at ¶ 14.) In June of 2007, they noticed a swayback of A.E.F.’s
spine. (Id.) These observations led A.E.F.’s parents to seek x-rays at a local hospital.
(Id.)
The x-ray results were relayed to Dr. Sahukar, who referred A.E.F.’s parents to
orthopaedic surgeon Dr. Michael Ferrick. (Id. at ¶¶ 14, 15) On June 12, 2007, Dr. Ferrick
diagnosed A.E.F. with bilateral hip dysplasia and bilateral dislocated hips. (Id. at ¶ 15.)
This was the first time A.E.F.’s parents became aware that A.E.F. had a hip problem. (Id.)
According to A.E.F.’s parents, Dr. Ferrick explained that A.E.F.’s hip problems likely
developed in utero and existed since birth. (Id.) Based on A.E.F.’s age, Dr. Ferrick
recommended surgical intervention, rather than bracing. (Id.)
A.E.F. thereafter underwent two hip reduction surgeries: for the right hip in
September 2007, and for the left hip in October 2007. (Id. at ¶ 16.) A.E.F. then wore pelvic
hardware and hip orthotics for various periods of time. (Id.) On September 21, 2010, Dr.

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Frank breech means that a baby’s buttocks are aimed at the birth canal with his or her legs
sticking straight up in front of his or her body. The baby’s feet are near the head.

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Ferrick informed Plaintiffs that A.E.F. had developed a problem in the right hip that would
likely require additional surgery. (Id.)
In April 2011, A.E.F.’s parents discussed A.E.F.’s medical issues with A.E.F.’s
grandfather. (Id. at ¶ 18.) Having experienced hip problems and operations himself,
A.E.F.’s grandfather suggested to A.E.F.’s parents that A.E.F. was unusually young to be
experiencing hip problems and could expect to suffer future problems. (Id.) He suggested
that they contact a lawyer to see if anything could be done to help A.E.F. (Id.) Heeding
A.E.F.’s grandfather’s advice, A.E.F.’s parents eventually retained counsel on May 31,
2011, who investigated A.E.F.’s condition and determined that certain acts or omissions
by A.E.F.’s medical care providers may have caused the condition. (Id. at ¶¶ 19-21.)
According to K.D.F., Dr. Ferrick never told her or her husband that A.E.F.’s hip
problems were caused or aggravated by the acts or omissions of healthcare providers. (Id.
at 17.) To the contrary, Dr. Ferrick explained that A.E.F.’s hip problems likely developed
in utero and existed since birth. (Id. at 15.) Rather, the first time that anyone suggested
to K.D.F. and her husband that A.E.F.’s problems could be the result of improper medical
treatment was when A.E.F.’s grandfather raised the issue in April 2011. (Id. at 18.)
B.

Procedural History
Plaintiffs filed administrative tort claims with the Department of Health and Human

Services (“HHS”) on September 24, 2012. (Compl., ¶ 25.) HHS denied Plaintiffs’ claims
on October 3, 2012. (Compl., ¶ 26.) Plaintiffs then commenced this action about five
months later, on March 19, 2013, by filing a complaint in the United States District Court
for the Western District of New York. (Docket No. 1.)
The first claim in Plaintiffs’ complaint is that Defendants acted negligently in their
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care and treatment of A.E.F. by failing to properly diagnose and treat A.E.F.’s hip
conditions. (Compl., ¶¶ 11-18.) Specifically, Plaintiffs maintain that Defendants negligently
failed to properly diagnose and treat A.E.F.’s developmental dysplasia and bilateral hip
dislocation. (Compl., ¶12.)

Plaintiffs’ second and third claims are that Defendants’

negligence damaged A.E.F.’s father and mother, respectively, as they have and will incur
expenses relating to A.E.F.’s condition, and they have and will lose A.E.F.’s services and
society. (Compl., ¶¶ 20, 23.)
On August 22, 2013, Defendant United States filed the instant Motion to Dismiss,
arguing that because Plaintiffs’ administrative claims were untimely, this Court lacks proper
subject-matter jurisdiction. (Docket No. 11.) Briefing of Defendant’s motion concluded on
September 30, 2013, after which this Court took the motion under advisement without oral
argument.
III. DISCUSSION
A.

Motion to Dismiss Standard
The plaintiff, as the party seeking to invoke the court’s jurisdiction, bears the burden

of demonstrating proper subject-matter jurisdiction. McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Scelsa v. City Univ. of
N.Y., 76 F.3d 37, 40 (2d Cir. 1996). In turn, a defendant may assert lack of subject-matter
jurisdiction as a defense under Rule 12(b)(1), which permits dismissal of an action if the
“district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000).
In assessing a Rule 12(b)(1) motion, the court accepts as true all material factual

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allegations in the complaint, but does not draw inferences favorable to the party asserting
jurisdiction. See J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004);
Shipping Financial Svcs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). The court
may also consider affidavits and other materials beyond the pleadings, but may not rely on
conclusory or hearsay statements. See J.S., 386 F.3d at 110.
B.

Subject-Matter Jurisdiction under the FTCA
The FTCA provides a limited waiver of the sovereign immunity enjoyed by the

United States. The United States may be held liable when employees acting within the
scope of their employment are negligent in “circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b).
The statute of limitations provisions included in the FTCA are a condition of this
limited waiver of sovereign immunity. 28 U.S.C. § 2401(b); United States v. Kubrick, 444
U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Specifically, these provisions
require that any claim be “presented in writing to the appropriate Federal agency within two
years after such claim accrues.” 28 U.S.C. § 2401(b). A claim accrues under the FTCA
“either at the time of injury or when the plaintiff has, or with reasonable diligence should
have, discovered the facts critical to his or her injury, whichever is earlier.” Johnson v.
Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999). If this requirement is not met, a
district court lacks subject-matter jurisdiction over the claim. Id. at 189.
C.

Diligence-Discovery Rule of Accrual
Accrual of an FTCA claim is a matter of federal law. See A.Q.C. ex rel. Castillo v.

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United States, 656 F.3d 135, 139 (2d Cir. 2011). An FTCA claim ordinarily accrues at the
time of injury. See Barrett v. United States, 689 F.2d 324, 327 (2d Cir. 1982). But accrual
may be postponed when a plaintiff “would reasonably have had difficulty discerning the fact
or cause of injury at the time it was inflicted.” Kronisch v. United States, 150 F.3d 112, 121
(2d Cir. 1998). In such a case, the diligence-discovery rule of accrual applies.
Under the diligence-discovery rule, a claim does not accrue until the plaintiff has or
with reasonable diligence should have discovered the critical facts of both his injury and
its iatrogenic cause. Id.; Valdez ex rel. Donely v. United States, 518 F.3d 173, 178 (2d Cir.
2008)(requiring that a plaintiff know, or reasonably could know, “that the injury he suffered
related in some way to the medical treatment he received.”). “Discovery of the ‘critical
facts’ of injury and causation is not an exacting requirement, but requires only knowledge
of, or knowledge that could lead to, the basic facts of the injury, i.e., knowledge of the
injury’s existence and knowledge of its cause or of the person or entity that inflicted it.”
Kronisch, 150 F.3d at 121. “A claim will accrue when the plaintiff knows, or should know,
enough of the critical facts of injury and causation to protect himself by seeking legal
advice.” Id. (citing Guccione v. United States, 670 F.Supp 527, 536 (S.D.N.Y. 1987)).
D.

Analysis
The only issue before this Court is the date on which Plaintiffs’ FTCA claim accrued.

Defendant maintains that the claim accrued on June 12, 2007, the date Dr. Ferrick
diagnosed A.E.F. with bilateral hip dysplasia and bilateral dislocated hips. (Id. at ¶ 15.)
Defendant argues that this was the date on which Plaintiffs learned of A.E.F.’s injury and
its cause. According to Defendant, the possibility of doctor-caused injury to A.E.F. was “an

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obvious question” based on Dr. Ferrick’s inquiries concerning A.E.F.’s prior treatment and
his elimination of bracing as a treatment option due to A.E.F.’s age.
Plaintiffs maintain that their claim accrued, at the earliest, in April 2011, when
A.E.F.’s grandfather suggested that A.E.F.’s parents contact a lawyer on A.E.F.’s behalf.
(K.D.F. Affid., ¶ 18.) According to K.D.F., this was the first time anyone suggested to her
and her husband that A.E.F.’s condition could have been the result of improper medical
treatment. (Id.)
Based on the evidence of record, this Court finds that Plaintiffs’ FTCA claim accrued
in April 2011, at the earliest. Before April 2011, Plaintiffs were unaware that A.E.F. may
have suffered an iatrogenic injury. A.E.F. reached developmental milestones until just
before A.E.F.’s second birthday, at which time A.E.F.’s parents sought medical intervention
based on their observations of A.E.F. Dr. Ferrick then examined A.E.F. and diagnosed two
hip conditions, explaining that A.E.F. was likely born with the conditions and that they likely
developed in utero.
Nothing in the record supports Defendant’s position that A.E.F.’s parents should
have known from Dr. Ferrick’s inquires about past treatment and bracing that A.E.F.’s
condition could have been the result of medical malpractice, especially when this
discussion is considered in the context of Dr. Ferrick advising A.E.F.’s parents that A.E.F.’s
condition likely developed in utero. Dr. Ferrick’s records do not reflect any discussion of
medical malpractice, nor is there a reasonable basis to conclude that the possibility of
medical malpractice was an “obvious question,” as Defendant argues. The best that can
be said of this discussion is that it marks the first time that Plaintiffs learned of A.E.F.’s
injury.
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Rather, this Court finds that it was not until April 2011, when A.E.F.’s grandfather
questioned A.E.F.’s condition, that A.E.F.’s parents were reasonably on notice of both
A.E.F.’s injury and its possible doctor-related cause. See Kronisch, 150 F.3d at 121;
Valdez, 518 F.3d at 177. Consequently, this Court finds that Plaintiffs’ FTCA claim
accrued, at the earliest, in April 2011. Because Plaintiffs filed an administrative claim with
HHS within two years of April 2011, see Compl., ¶ 25, and filed this action within six
months of the denial of that claim, see Compl., ¶¶ 26, 27, this Court has proper subjectmatter jurisdiction. See 28 U.S.C. § 2401(b).
IV. CONCLUSION
For the foregoing reasons, this Court finds that it has proper subject-matter
jurisdiction.

Defendant’s motion to dismiss for lack of subject-matter jurisdiction is

therefore denied.
V. ORDERS
IT HEREBY IS ORDERED, that Defendant’s Motion to Dismiss (Docket No. 11) is
DENIED.
FURTHER, that Defendant United States is directed to file an answer within 21 days
of the filing date of this decision.
SO ORDERED.

Dated:

May 30, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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