Rivera-Carrion v. United States of America, et al

Filing 57

OPINION AND ORDER noting 26 MOTION to Substitute Party; granting 56 (AMENDED) MOTION to Substitute Party (AMENDED); denying 27 MOTION to dismiss; denying 48 MOTION to dismiss (2nd). Signed by Judge Salvador E Casellas on 2/18/2009.(THD)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

G L A D Y S RIVERA-CARRION, et al.

* * P l a in tif f s * * v. * * U N IT E D STATES OF AMERICA, et al * * D e f e n d a n ts * **********************************

Civil No. 08-1498 (SEC)

O P I N IO N & ORDER P e n d in g before this Court are Co-defendants the United States of America, D e p a r tm e n t of Health and Human Services, and Dr. Iris Oquendo's (hereinafter Defendants) M o tio n to Dismiss (Docket # 27) and Second Motion to Dismiss (Docket # 48), along with P la in tif f s' 1 oppositions thereto (Dockets ## 39 & 52). Furthermore, Defendants have filed a Motion to Substitute Party (Docket # 26) and an Amended Motion to Substitute Party (D o c k e t # 56), which includes Co-defendant Gurabo Community Health Center (hereinafter " G C H C " ). For the reasons set forth below, Defendants' Motion to Dismiss and Second M o tio n to Dismiss are DENIED, and Defendants' Amended Motion to Substitute Party is GRANTED.

1

The Plaintiffs are the minor Betsy Roman-Rivera and her mother Gladys Rivera-

Carrion.

Factual and Procedural Background T h is Court notes that filings from both parties have been deficient. Plaintiffs' claim is deficient, because there is a dearth of specificity pertaining to the series of the medical in te rv e n tio n s that are alleged to have constituted tortious malpractice against Co-plaintiff B e ts y Roman-Rivera (hereinafter "Ms. Roman"). Only using the subsequent pleadings has t h i s Court constructed a rough time-line, allowing preliminary conclusions as to the tim e lin e ss and potential validity of the claim. With the information before this Court at the m o m e n t, the jurisdictional analysis will be focused on two sets of allegations, one from P lain tiff s and one from Defendants. This Court also notes that Defendants' filings were w an tin g , in as much as they do not include specific record citations. See Local Rule 10(a). B a se d on the aforementioned deficiencies the filings could be struck from the record, but b e c au s e it is in the best interest of judicial efficiency, this Court has pieced together a factual b a c k ground using Defendants' two motions to dismiss, and Plaintiffs' responses thereto, a s the basis of its analysis. D e f e n d a n ts allege, on the basis of Plaintiffs' administrative claims, that the minor Ms. R o m a n , who is being represented in this action by her mother Gladys Rivera-Carrion (h e re in a f te r "Ms. Rivera"), received medical treatment at GCHC between the years 2000 and 2 0 0 5 for a growth on her leg. See Docket # 27-2, Exh. 1. Plaintiffs allege that this treatment w a s negligent, and that it lead to Ms. Roman having a large portion of her calf removed. P la in tif f s also allege that they were only alerted to the fact that Ms. Roman had been subject t o negligent medical treatment on May 24, 2005, after a consultation with a doctor not

associated with GCHC. See Docket # 1 at 5. Defendants do not dispute Ms. Roman's medical condition. The basis for their motion to dismiss is the allegation that from the pleadings and the existing record it is plainly o b v i o u s that a reasonable person would have detected the malpractice in 2002, or at the latest in 2003, after Ms. Roman's condition reoccurred. See Docket # 48 at 5-6; Docket # 27 at 3. F u rth erm o r e, Defendants allege that one Co-defendant, Dr. Iris Oquendo (hereinafter "Dr. O q u e n d o " ) only treated Ms. Roman after her employer, GCHC, was deemed a federal f a c ility for purposes of the FTCA. See Docket # 48, 2-3. From the documents submitted, it a p p e a rs that Plaintiffs alleged in their administrative complaint that Dr. Oquendo began to o f f e r treatment to Ms. Roman in 2004. See Docket # 27-2 at 6. After allegedly becoming cognizant of the malpractice suffered by Ms. Roman, P la in tif f s filed suit in the Puerto Rico Court of First Instance - Caguas Section, on May 15, 2 0 0 6 . See Docket 39-6, Exh. III. Their suit was removed by Defendants on June 12, 2007, a n d then dismissed without prejudice by this Court on exhaustion grounds on March 17, 2 0 0 8 . Rivera-Carrion v. Miranda, Civ. No. 07-1504 at Docket # 18 (D.P.R. removed on June, 1 2 , 2007). After dismissal of their first action, Plaintiffs filled an administrative complaint o n approximately May 22, 2007. Docket # 27-2, Exh. 1. After going through agency

c h a n n el s a second Complaint (Docket # 1) was filed in this Court, in April, 2008, and P la in tif f s' administrative claims were denied on September 18, 2008. See Docket # 27-2 at 2. This Court also notes that Defendants have alleged that Plaintiffs failed to plead the

elements of proof required by a Puerto Rico medical malpractice case. The allegations will b e struck from the record, because they are not accompanied by record citations, and because, o n their face, Defendants's allegations fail to make pleadings that could substantiate grounds f o r dismissal on this non-jurisdictional ground. Plaintiffs have stated the general cause of a c tio n in paragraphs 21-31 of their Complaint (Docket # 1). A motion for summary judgment, p re se n tin g the facts surrounding Ms. Roman's treatment would be a more appropriate vehicle f o r these allegations.

Standard of Review F e d . R. Civ. P. 12(b)(1) F e d . R. Civ. P. 12(b)(1) is the proper vehicle for challenging a court's subject matter ju ris d ic tio n . Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1 st Cir. 2001). Under th is rule, a wide variety of challenges to the Court's subject matter jurisdiction may be a ss e rte d , among them those based on sovereign immunity, ripeness, mootness, and the e x is te n c e of a federal question. Id. (citations omitted). When faced with a similar

ju ris d ic tio n a l challenge, this Court must ". . . give weight to the well-pleaded factual a v e rm e n ts in the operative pleadings [. . .] and indulge every reasonable inference in the p le a d er's favor." Aguilar v. U.S. Immigration and Customs Enforcement Div. of Dept. of H o m elan d Sec., 510 F.3d 1, 8 (1st Cir.2007). A plaintiff faced with a motion to dismiss for lack of subject matter jurisdiction has the b u rd e n to demonstrate that such jurisdiction exists. See Lord v. Casco Bay Weekly, Inc., 789 F . Supp. 32, 33 (D. Me. 1992); see also SURCCO V. PRASA, 157 F. Supp. 2d 160, 163 (D.

P.R. 2001). In this context, this Court is empowered to resolve factual disputes by making ref ere n ce to evidence in the record beyond the plaintiff's allegations without having to convert th e motion to dismiss into one for summary judgment. Id. "Where a party challenges the a c cu ra c y of the pleaded jurisdictional facts, the court may conduct a broad inquiry, taking ev iden ce and making findings of fact." Hernández-Santiago v. Ecolab, Inc., 397 F. 3d 30 (1 st C ir. 2005). Therefore, the court may consider extrinsic materials, "and, to the extent it engages in jurisdictional fact-finding, is free to test the truthfulness of the plaintiff's allegations." D yn a m ic , 221 F. 3d at 38. That is, the principle of conversion of a motion to dismiss into a m o t i o n for summary judgment when extrinsic materials are reviewed, does not apply in re g a rd s to a motion to dismiss for lack of subject matter jurisdiction. Id. Fed. R. Civ. P. 12(b)(6) In assessing whether dismissal for failure to state a claim is appropriate, the court must ta k e "plaintiffs' well-pleaded facts as true and [indulge] all reasonable inferences therefrom t o their behoof." Buck v. American Airlines, Inc., 476 F. 3d 29, 32 (1 st Cir. 2007). "In c o n d u c tin g that tamisage, however, bald assertions, unsupportable conclusions, periphrastic c irc u m lo c u tio n s , and the like need not be credited." Id. at 33; see also Rogan v. Menino, 175 F .3 d 75, 77 (1 st Cir. 1999). Therefore, "even under the liberal pleading standards of Federal R u le of Civil Procedure 8, the Supreme Court has recently held that to survive a motion to d is m is s , a complaint must allege `a plausible entitlement to relief.'" Rodríguez-Ortíz v. Margo C a r ib e , Inc., 490 F.3d 92 (1st Cir. 2007). Complaints do not need detailed factual allegations. B e ll Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). However, factual allegations

must be enough to raise a right to relief above the speculative level. Id.

Applicable Law and Analysis T h e applicable law for this case must be divided into two periods. The first is before Ja n u a r y 1, 2004, when the GCHC was not covered by the Federal Tort Claims Act ( h e re in a f te r "FTCA"), and the second starts on said date when GCHC gained coverage under th e statute. See Docket # 27 at 5; Docket # 27-2 at 2. Before 2004 the case arises out of C o m m o n w e a lth law, because no federal party is alleged to have participated in the treatment o f Ms. Roman. As such, the applicable statutes before 2004 are Articles 1802 & 1868 of the C ivil Code of Puerto Rico, P.R. Laws Ann. tit. 31, § 5141; P.R. Laws Ann. 31, § 5298(2). A f te r GCHC gained federal coverage, the FTCA preempts all state law claims. Timeliness Article 1802 A s mentioned above, Defendants argue that Plaintiffs should have become aware of th e ir cause of action at the latest in 2003, and thus the claim is time-barred under the Federal T o rt Claims Act. Plaintiffs allege that they became aware of the presence of malpractice on M a y 24, 2005, and that there filings are, as such, timely. P u e rto Rico law affords one year to file suit in a medical malpractice action after "`the a g g rie v e d person [has] knowledge thereof.'" Ortiz v. Municipio De Orocovis, 13 P.R. Offic. T r a n s 619, 113 P.R. Dec. 484, 485 (1982). The statute of limitations does not wait for the in ju ry to "reach its final degree of development," but it does not run until there is knowledge o f the malpractice. Furthermore, the knowledge is not merely of the injury, but also of the

causal link between the injury and the occurrence of negligence. Guzman-Camacho v. State In s . Fund Corp., 418 F. Supp. 2d 3, 9 (D.P.R. 2006); see also Rivera Encarnacion v. E.L.A., 1 3 P.R. Offic. Trans. 498, 113 P.R. Dec. 383, 386 (1982). This requires knowledge of the in ju ry, and the person who caused it. Torres v. E.I. Dupont de Nemours & Co., 219 F.3d 13, 1 8 (1st Cir. P.R. 2000) (citing Colon Prieto v. Geigel, 15 P.R. Offic. Trans. 313, 330, 115 P.R. D e c . 232, 246 (1984)). However, in Puerto Rico, children do not reach legal age until their 2 1 st birthday, and local jurisprudence has clearly established that, "as a rule, the statute of lim ita tio n s does not run against minors." Rodriguez-Aviles v. Rodriguez-Beruff, 17 P.R. O f f ic . Trans. 736, 117 P.R. Dec. 616, 620 (1986); see also De Jesus v. Chardon, 16 P.R. O f f ic . Trans 290, 116 P.R. Dec. 238 (1985). According to Plaintiffs' uncontroverted allegations, Ms. Roman was a minor when this c la im was filed. See Docket # 1 at 2. As such, the statute of limitations for all claims arising u n d e r Article 1802 were tolled for her. However, her mother's claims were not tolled, b e c au s e she did not enjoy the same protection due to minority. As an adult, Ms. Rivera was o b lig a ted to bring her own claim within the one-year statute of limitations set forth in Article 1 8 6 8 . Plaintiffs allege they filed suit on May 15, 2006, which is supported by the record. D o c k e t # 39-2 at 2; see also Docket # 39, Exh. II. This date falls within the one-year statute o f limitations. Defendants present a different date of accrual. They repeatedly argue that Plaintiff s h o u ld have had knowledge of the malpractice at the latest by August 25, 2003. See, e.g., D o c k e t # 48 at 6. Their argument is based on the fact that Plaintiffs were informed on said

date that the mass on Ms. Roman's calf had recurred. Notwithstanding, Defendants do not p ro v id e record citations for their allegation. Id. Furthermore, this Court does not agree prima facie with Defendants that the recurrence o f Ms. Roman's condition should have alerted a reasonable person to the presence of a m e d ic a l tort. Patients, who generally have little or no knowledge of medicine, operate under the assumption that they are receiving adequate treatment, and the mere knowledge that one's c o n d itio n has not been cured does not necessarily suggest medical malpractice. As such, e lu c id a tin g which of these two competing claims is correct requires a fact-driven inquiry that is not possible at this juncture, and would be more appropriate as a motion for summary ju d g m e n t after discovery has been completed. Accordingly, at present there is not enough evidence before this Court to make a d e te rm in a tio n regarding the date of accrual of the present action. Holding Plaintiffs' a lle g a tio n regarding accrual as true, the suit was presented within the one-year statute of lim itatio n s set forth by Article 1802. For the aforementioned reasons, Defendants motion to d is m is s for Plaintiffs' Article 1802 claims is hereby DENIED. T im e lin e ss FTCA The statue of limitations for claims under the FTCA is controlled by 28 U.S.C.A. § 2 4 0 1 (b ), which states: (b) A tort claim against the United States shall be forever barred unless it is p re se n te d in writing to the appropriate Federal agency within two years after su c h claim accrues or unless action is begun within six months after the date o f mailing, by certified or registered mail, of notice of final denial of the claim b y the agency to which it was presented.

The First Circuit has in the past recognized that minority does not toll the statute of lim ita tio n s in FTCA cases. Tessier v. U.S., 269 F.2d 305, 310 (1959). More recently, other c irc u its have discussed this issue and come to the same conclusion. See, eg., Wison ex rel. W ilso n v. Gunn, 402 F.3d 524, 526 (8 th Cir. 2005)(holding "Infancy does not ordinarily toll th e FTCA statute of limitations"); McCall v. United States, 310 F.3d 984, 986-87 (7th Cir. 2 0 0 2 ). However, as Defendants admit, a claim does not accrue until a plaintiff becomes c o g n iz a n t of facts and information that using an objective standard would ". . . prompt a re a so n a b le person to inquire and seek advice preliminary to deciding if there is a basis for f ilin g an administrative claim against the government." Callahan v. U.S., 426 F.3d 444, 451 (1 s t Cir. 2005). In other words, accrual is subject to a "discovery rule," where the statute of lim itatio n s on a medical malpractice claim does not run until the Plaintiff identifies, or should h a v e discovered, the factual basis for the cause of action. Ramirez-Carlo v. United States, 496 F .3 d 41, 46 (1st Cir. P.R. 2007); see also Gonzalez v. United States, 284 F.3d 281, 288 (1st C ir. 2002). T h i s Court recognizes that for all FTCA claims, unlike Article 1802 claims, Ms. R o m a n ' s status as a minor would not toll the statute of limitations. Accordingly, Defendants' tim e lin e ss arguments apply to both mother and daughter. However, as discussed in the p re v io u s section, Plaintiffs allege that they became cognizant of their injury from medical m a lp ra c tice on May 24, 2005, and Defendants have not yet presented evidence that would a llo w a determination that the date of accrual is any other than that alleged in the complaint. If the complaint accrued on May 24, 2005, then under the FTCA, the statute of

limitations permitted Plaintiffs two years to file an administrative, or judicial claim. Plaintiffs f irst filed a state law claim on May 15, 2006, which was removed on June 12, 2007 to this C o u rt, and eventually dismissed without prejudice for lack of exhaustion of administrative re m e d ie s. See Rivera-Carrion v. Miranda, Civ. No. 07-1504 at Docket # 18 (D.P.R. removed o n June, 12, 2007). Likewise, an administrative claim was filed no later than May 22, 2007, a n d is stamped as received by Defendants on May 24, 2007. See Docket # 27-2, Exh. 1. On A p r il 30, 2008, a second Complaint (Docket # 1) was filed in this Court, and Plaintiffs' a d m in is tra tiv e claims were denied on September 18, 2008. See Docket # 27-2 at 2. Defendants argue that this claim is not timely, again without including record citations a s required by Local Rule 10(a), and entirely relying on the argument that the date of accrual w a s necessarily no later than August 25, 2003. See Docket # 48 at 7. However, FTCA claims re q u ire that "an administrative claim be filed and finally denied. . ." Celestine v. Mount V e rn o n Neighborhood Health Center, 283 F. Supp. 2d 392, 399 (S.D.N.Y. 2003); McNeil v. U n ite d States, 508 U.S. 106, 113 (1993). Defendants have not proffered new arguments on e x h a u stio n grounds. In fact, Defendants admit that the filing of Plaintiffs' original state law c la im could have tolled the statute of limitations for filing the administrative claim. Id. From th e record, it is clear that Plaintiffs filed an administrative complaint, whether or not it was d e n ie d before this suit was brought. The possible relevance of that issue cannot be decided a t this time. Nevertheless, an examination of the record show that, assuming accrual occurred in M a y, 2005, Plaintiffs filed both a state court suit, and a federal administrative claim, within

the two-year statute of limitations. Contrary to Defendants' allegations this Court cannot conc lud e that Plaintiffs' FTCA cause of action is time barred. Therefore, Defendants' motions to dismiss (Dockets ## 27 & 48) are DENIED. Motions to Substitute Defendants' Motion to Substitute (Dockets # 26) and Amended Motion to Substitute (D o c k e t # 56), which adds GCHC, are predicated on their assertion that 28 U.S.C. 2679(b)(1) m a n d a te s that the exclusive remedy under the FTCA is against the United States of America. T h is Court agrees that the FTCA provides federal government employees and officers im m u n ity from medical malpractice claims, when the Attorney General, or his designee so c e rtif ie s their coverage. See Celestine, 283 F. Supp. 2d at 395 (S.D.N.Y. 2003)(holding that " O n c e deemed a PHS employee, a community health center enjoys immunity from those acts t h a t relate to its employment, and any actions against it are treated as actions against the U n ite d States. 42 U.S.C. § 233(a)."). Even though the first Motion to Substitute Party was f ile d on October 22, 2008, Plaintiffs have not opposed on the merits Defendants allegations th a t after 2004 the only party in this suit should be the United States of America. Their in a c tiv ity shall be interpreted as acquiescence. Consequently, there is no relevant controversy in terms of the substitution of parties c o v e re d by the FTCA after January 1, 2004. This Court shall grant Defendants' Amended M o tio n to Substitute, NOTE the first Motion to Substitute, and DISMISS all post-2004 c laim s against the U.S. Department of Health and Human Services, the U.S. Public Health S e rv ic e , GCHC, and Dr. Oquendo, SUBSTITUTING in their place the United States of

America. The FTCA does not cover pre-January 1, 2004, claims against GCHC, so it shall r e m a in a party liable to all of Plaintiffs' Article 1802 causes of action. However, as Plaintiffs' o w n administrative compliant acknowledges that Dr. Oquendo did not offer treatment to P la in tif f s until 2004, all claims against her shall be DISMISSED WITH PREJUDICE. Conclusion: In light of the above discussion, Defendants' motions to dismiss (Docket ## 27 & 48) are DENIED, Defendants' Motion to Substitute Part (Docket # 26) is NOTED, and

D e f e n d a n ts ' Amended Motion to Substitute Party (Docket # 56) is GRANTED. Plaintiffs' c la im s against Dr. Oquendo, the U.S. Department of Health and Human Services, and the U.S. P u b lic Health Service are DISMISSED with Prejudice. Partial judgment will be entered a c c o rd in g ly. SO ORDERED. In San Juan, Puerto Rico, this 18th day of February, 2009.

S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States Senior District Judge