Morales-Melecio et al v. United States of America (Department of Health and Human Services)

Filing 268

OPINION AND ORDER. GRANTED 221 United States' Motion for Summary Judgment. Signed by Judge Salvador E. Casellas on 6/3/2016.(JRD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUZ Z. MORALES-MELECIO ET AL.,
Plaintiffs,
v.

Civil No. 13-1311 (SEC)

UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
In United States v. Kubrick, the Supreme Court held that, in medical
malpractice claims against the United States under the Federal Tort Claims Act, 28
U.S.C. §§ 2401(b), 2671-2680 (FTCA), the statute of limitations begins to run “when
the plaintiff knows both the existence and the cause of his injury.” 444 U.S. 111, 113
(1979); see also Skwira v. United States, 344 F.3d 64, 73 (1st Cir. 2003). The
resolution of this case requires a careful analysis of what constitutes knowledge of the
cause of injury within the meaning of Kubrick.
The plaintiffs are María Martínez, Emilio Matos-Pérez, minor Z.M.M., and
Mariela Matos (collectively, Plaintiffs); the parents, daughter, and sister of the late
Emilio Matos-Martínez (Matos), the putative victim of this medical malpractice action.
They brought a wrongful-death action seeking compensatory damages for their own
suffering as a result of Matos’ premature death. Z.M.M. also brought an inherited
action as heir of her deceased father, for the suffering that Matos endured shortly
before his death.
Pursuant to the Federally Supported Health Centers Assistance Act, 42 U.S.C. §
233, the United States is liable under the FTCA for the negligent acts and omissions
attributable to Salud Integral en la Montaña (SIM), a federally-funded hospital.

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Pending before the Court is the United States’ motion for summary judgment.
For the reasons that follow, the motion is GRANTED. Because the Government’s
motion is grounded on the FTCA’s statute of limitations, a chronological recount of the
relevant facts, viewed in the light most favorable to Plaintiffs, sets the stage.
I.

Factual and Procedural Background

On February 27, 2010, Matos sought medical attention for abdominal pain and
constipation at SIM. After a perfunctory evaluation, which did not include laboratory
or image studies, he was diagnosed with “abdominal pain,” and then discharged with
instructions to take certain medication.
Matos’ condition worsened overnight. The next day, his sister took him to the
emergency room at Hospital Universitario Ramón Ruiz-Arnaus (HURRA). There, he
was diagnosed with abdominal pain, dehydration, and hematuria (blood in the urine).
Medical tests revealed evidence of a bowel obstruction which prompted the emergency
room physician to request surgical evaluation. See Docket # 189, p. 4. Dr. Ricardo
Rosario, head of HURRA’s surgery department, refused to evaluate Matos stating that
there were no surgical tables at the hospital sturdy enough to handle a patient weighing
as much as Matos, who tipped the scales at 330 pounds. Thus, the staff at HURRA
attempted to transfer Matos to another medical facility. But it was not until the next
morning, on March 1, 2010, that Matos was transferred to the Puerto Rico Medical
Center. He was immediately diagnosed with septic shock and multiple organ failure.
By mid-afternoon, Matos was dead. The next day, Matos’ mother and co-plaintiff
María Martínez authorized an autopsy.
On March 6, 2010, Matos’ body was cremated. Two days later, Martínez
received the cremation file, which included a copy of the death certificate stating that
the cause of death was “septic shock, secondary to peritonitis, secondary to internal
perforation.” On May 26, 2010, she requested a certified copy of Matos’ complete
medical file at the Puerto Rico Medical Center, and on July 28, 2010, she received the

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file, including the autopsy report. Like the death certificate, the autopsy report
confirmed that Matos’ cause of death was septic shock secondary to peritonitis, but
added diverticulitis as a cause of the intestinal perforation.
Plaintiffs filed a medical malpractice suit in local court on March 11, 2011,
against SIM, HURRA, and related physicians, but on June 20, 2011, they voluntarily
dismissed it. At some point thereafter, Plaintiffs do not say exactly when, they became
aware that SIM was a covered entity pursuant to the Federally Supported Health
Centers Assistance Act, under which SIM and its employees are deemed to be federal
employees of the Public Health Service for purposes of medical malpractice suits. 42
U.S.C. § 233(g)(1)(A). Still, it was not until April 15, 2012—over a year after they
filed their original complaint in state court and nine months after they voluntarily
dismissed it—that they filed their administrative claim before the U.S. Department of
Health and Human Services. More than a year passed without the agency rendering a
final disposition of their claims. Thus, on April 22, 2013, Plaintiffs filed this federal
action.
In due course, the Government moved for summary judgment, arguing that
Plaintiffs’ claims are time-barred by the FTCA’s two-year statute of limitations.
Docket # 221. Plaintiffs counter that their claims are timely under the “discovery rule,”
applicable to FTCA cases when “the factual basis for the cause of action… [is]
‘inherently unknowable’ at the time of injury.” González v. United States, 284 F.3d
281, 288-89 (1st Cir. 2002) (quoting Attallah v. United States, 955 F.2d 776, 780 (1st
Cir. 1992).
II.

Standard of Review

Summary judgment is appropriate only if the “movant 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). A dispute is genuine if a “reasonable fact-finder
could resolve in favor of either party and a material fact is one that could affect the

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outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). At
this stage, it is axiomatic that courts “may not weigh the evidence,” Casas Office
Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994), and must
construe the record in the “light most flattering” to the nonmovant. Soto-Padró v.
Public Bldgs. Authority, 675 F.3d 1, 2 (1st Cir. 2012). A court must similarly resolve
all reasonable inferences in favor of the non-moving party. Tolan v. Cotton, 134 S.Ct.
1861, 1863 (2014) (per curiam). In this case, the material facts are, for the most part,
undisputed.
III.

Applicable Law and Analysis

Plaintiffs’ action against the United States is premised on SIM’s status as a
covered entity under the Federally Supported Health Centers Assistance Act. As such,
their remedy for any medical malpractice attributable to SIM or its employees lies
exclusively within the contours of the FTCA. See 42 U.S.C. § 233(a); Hui v.
Castaneda, 559 U.S. 799, 806 (2010).
It is well settled that, as a sovereign, the United States is immune from suit
without its consent. See Skwira, 344 F.3d at 72 (citing United States v. Mitchell, 445
U.S. 535, 538 (1980)). In enacting the FTCA, Congress expressly waived the United
States’ immunity, thereby allowing individuals to sue the Government “for or injury or
loss of property, or personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment.” 28 U.S.C. § 1346(b). But such a claim is “forever barred
unless it is presented in writing to the appropriate Federal agency within two years
after such claim accrues.” Id. § 2401. Because this statute of limitations is a condition
of the United States’ waiver of immunity, it “must be strictly construed.” Skwira, 344
F.3d at 73 (citing Kubrick, 444 U.S. at 117–18).
At issue here is whether Plaintiffs’ administrative claims were filed within the
FTCA’s statute of limitations. This, in turn, depends on the date when Plaintiffs’ claims

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“accrued” for purposes of commencing the FTCA’s limitations period.1 Importantly, “it
is federal law—not state law—that is used to determine [when the statute of
limitations begins in] an FTCA claim.” Surén-Millán v. United States, 38 F. Supp. 3d
208, 219 (D.P.R. 2013) (citing Rakes v. United States, 442 F.3d 7, 20 n. 7 (1st Cir.
2006).
a. The FTCA’s statute of limitations and the discovery rule
As a general rule, the FTCA’s statute of limitations begins to run on the date of
the injury. See González, 284 F.3d at 288. This is known as the “time-of-injury rule.”
Skwira, 344 F.3d at 75. But the Supreme Court has recognized a “discovery rule”
applicable to medical malpractice claims when “the factual basis for the cause of
action… [is] ‘inherently unknowable’ at the time of injury.” González, 284 F.3d at
288-89. Under this exception, the statute of limitations begins to run when an injured
party, exercising reasonable diligence, uncovers “both the existence and the cause of
his injury.” Kubrick, 444 U.S. at 113.
Here, the parties agree that Plaintiffs had knowledge of their injury since the
date of Matos’ death. However, they disagree about the date when Plaintiffs knew, or

1

The discovery rule has been perceived as a rule “governing delayed accrual” of a claim. Rakes v. United States,
442 F.3d 7, 24 (1st Cir. 2006). The reader, however, will note that this opinion is written, for the most part, in
terms of the date when the statute of limitations began to run and not in terms of the date when Plaintiffs’ claims
accrued. The reason is that in William A. Graham Co. v. Haughey, the Third Circuit opined that many courts
have often confused the discovery rule as having the effect of “delaying the accrual of a cause of action,” rather
than “tolling the running of the statute of limitations.” 646 F.3d 138, 149 (3d Cir. 2011) (listing myriad cases
where courts assume that the discovery rule pertains to accrual but do not define “precisely what it means for a
cause of action to accrue; nor do they explain why accrual rather than tolling is the relevant concept”).
Concluding that the discovery rule “cannot be an accrual doctrine,” id. at 150, the court observed that “[a]ccrual
has to do with the existence of a legally cognizable right to obtain a judicially sanctioned remedy, not the
practical capacity to file a lawsuit.” Id. at 147. Accrual, the Third Circuit said, “is defined in terms of the
objective existence of a viable cause of action, not in terms of whether the limitations clock has started.” Id. at
149. Although “the limitations period generally commences once a claim exists,” “a running clock is not the sine
qua non of accrual.” Id. In this particular case, the distinction between characterizing the discovery rule as
delaying the accrual of an action rather than tolling the statute of limitations is immaterial. The Court’s choice of
words is meant to avoid any potential confusion.

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should have reasonably known, the cause of his injury so as to trigger the limitations
period.2
Plaintiffs posit that that the limitations clock did not start until July 28, 2010,
when the Puerto Rico Medical Center produced Matos’ complete medical file
including the autopsy report. In support of this argument, they proffered an affidavit by
their expert witness, Dr. Manuel Pérez that reads as follows:
By merely reading the [] death certificate, no potential claimant, nor
even a physician, would have suspected the real cause of [Mr. Matos’]
demise, including if negligence was a factor that contributed or cause it.
An intestinal perforation can be the result, among others, of appendicitis,
ischemic or traumatic necrosis [or]…perforated diverticula, as in Mr.
Matos’ case.
Taking this death certificate only, besides the happening of Mr. Matos’
demise written as the result of septic shock, secondary to peritonitis,
secondary to intestinal perforation, no physician can reasonably realize,
less a lay person, that a negligent act has been committed, not even its
true cause. In other words, no one can infer the actual or real cause of
death or suspect negligence with the incomplete medical reasons
written… on this death certificate. The etiology of Mr. Matos’ intestinal
perforation, is not stated anywhere in the death certificate or can be
infer[red] by just reading it. Simply put, perforated diverticula, as was
clearly stated in his autopsy report, was Mr. Matos’ real cause of death
2

It is unclear which party has the burden of proof on this issue. In Skwira, the First Circuit observed that some
“circuits view the FTCA’s statute of limitations as an affirmative defense, rather than a jurisdictional
prerequisite, and therefore place the burden of proof on the defendant.” 344 F.3d at 71, n. 8. At the time,
however, the First Circuit viewed “the statute of limitations as jurisdictional in nature, and, accordingly, place[d]
the burden of proof on the plaintiff.” Id. The legal basis for this rationale was upended by the recent decision in
United States v. Kwai Fun Wong, where the Supreme Court held that “the FTCA’s time bars are
nonjurisdictional and subject to equitable tolling.” 135 S. Ct. 1625, 1638 (2015). The logical reasons for placing
the burden on the plaintiffs, however, are not necessarily affected by Kwai Fun Wong. See e.g., McCall ex rel.
Estate of Bess v. United States, 310 F.3d 984, 987 (7th Cir. 2002) (“[T]he plaintiff [ ] has the burden of
establishing an exception to the statute.”). Indeed, it seems unreasonable to require the Government to prove a
negative (i.e. that the plaintiff did not exercise reasonable diligence) to prevail on a statute of limitations defense.
See Gould v. U.S. Dept. of Health & Human Svcs., 905 F.2d 738, 745-46 (4th Cir.1990) (“The burden is on
plaintiffs to show that due diligence was exercised and that critical information, reasonable investigation
notwithstanding, was undiscoverable.”). The First Circuit has not revisited this question after Kwai Fun Wong
and the Court need not decide this now because the material facts of this case are, for the most part, undisputed.
Even assuming that it fell upon the United States, the Government has adequately shown that Plaintiffs had
knowledge of their injury and its cause at the time of Matos’ death.

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and was not revealed until the autopsy report findings became known by
his family.
Moreover, in order to responsibly suspect that negligence was a factor in
this medical incident, it was necessary to analyze all the medical records
and see if a link between the doctors’ acts and omissions and Mr. Matos’
outcome existed. Should the diverticulitis was timely suspected,
diagnosed and, thus, treated and acted upon by the physicians, he could
have survived, as any other patient with this condition, even if
perforation was promptly discovered. Hence, it is reasonable to conclude
that claimants came into the knowledge of the existence of their right to
sue when the reason that caused the perforation and Mr. Matos’ death
became known to them[.] [That] is, when they secured all the medical
records and the autopsy report, not before. Although the injury (death)
was known since it happened on March 1, 2010, the medical cause of
Mr. Matos’ death was not and could not be discoverable on the basis of
the death certificate alone.
Docket # 234-7, pp. 3-4.
Plaintiffs argue that they lacked knowledge of Matos’ “real” cause of death—
which they characterize as “perforated diverticula”—until after they received the
autopsy report. Moreover, through Dr. Pérez’s affidavit, they suggest that the clock on
their claims did not start until they suspected that medical negligence may have
contributed to Matos’ death. See Docket # 236, p. 20. Both of these contentions are
flawed because they rely on incorrect notions of what constitutes “cause” or
“knowledge of the cause of injury” for purposes of determining the start of the FTCA’s
limitations period.
To begin with, the concept of “cause” for purposes of the FTCA discovery rule
in medical malpractice claims is not defined as “the immediate physical basis,”
Skwira, 344 F.3d at 78, or as the “precise medical reason for the injury.” Kerstetter v.
United States, 57 F.3d 362, 364 (4th Cir. 1995). Rather, as discussed below, knowledge
of the cause of an injury refers to general knowledge of the medical treatment that may
be related to the underlying injury. Thus, Plaintiffs’ first argument—that they were

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unaware of the “real” or “medical” cause of Matos’ death until they received the
autopsy report—is inapposite. 3
Likewise, Kubrick squarely rejected the basis for Plaintiffs’ second argument:
that the start of the limitations clock should wait until a plaintiff “knows or should
suspect that the doctor who caused his injury was legally blameworthy.” Kubrick, 444
U.S. at 121-22. Adoption of such a rule “would go far to eliminate the statute of
limitations as a defense separate from the denial of breach of duty.” Id. at 125.
Indeed, the Supreme Court has “been at pains to explain that discovery of the
injury, not discovery of the other elements of a claim (such as negligence), is what
starts the clock.” Rotella v. Wood, 528 U.S. 549, 555 (2000) (construing Kubrick)
(internal parenthetical text added). Even in the context of medical malpractice, “where
the cry for a discovery rule is loudest, [the Supreme Court has] been emphatic that the
justification for a discovery rule does not extend beyond the injury.” Id.
In enacting the FTCA Congress never intended that the “‘accrual’ of a claim
[for statute of limitations purposes]4 must await awareness by the plaintiff that his
injury was negligently inflicted.” Id. at 123 (emphasis added). Not even suspicion of
medical negligence is necessary to start the clock. See id. at 121-122. Instead, a
plaintiff knowing the facts about the injury must seek advice in the medical
community to determine whether the medical treatment conformed to the generally
applicable standard of care. See id. at 123-124. “But however or even whether he is
advised, the putative malpractice plaintiff must determine within the period of
3

Even if the Court were to apply the Ninth Circuit’s “immediate physical cause” analysis, see Dyniewicz v.
United States, 742 F.2d 484, 486 (9th Cir. 1984) (“The ‘cause’ is known when the immediate physical cause of
the injury is discovered.”)—which, as previously noted, was rejected in Skwira—Plaintiffs’ argument would still
fail on its merits. As both the death certificate and the autopsy report unequivocally state, Matos died because of
septic shock secondary to peritonitis and intestinal perforation. The autopsy report added only that diverticulitis
contributed to the intestinal perforation. Thus, the septic shock was the last incident in the chain of events that
led to Matos’ death, and is therefore the “immediate physical cause” of his death. Even by the standard
articulated in Dyniewicz, the cause of death, for purpose of the discovery rule, cannot be something more remote
(i.e. perforated diverticula) than the immediate cause of death (i.e. septic shock).
4

See note 1.

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limitations whether to sue or not, which is precisely the judgment that other tort
claimants must make.” Id. at 124.
Thus, in medical malpractice cases, knowledge of the cause of injury within the
discovery rule refers to general knowledge of the medical treatment that may be
related to the underlying injury, regardless of whether negligence was a factor. See
Rotella, 258 U.S. at 556 (“A person suffering from inadequate treatment is thus
responsible for determining within the limitations period then running whether the
inadequacy was malpractice.”); Dyniewicz v. United States, 742 F.2d 484, 487 (9th
Cir. 1984) (the statute of limitations began to run “when plaintiff learned polio vaccine
had caused his injury not when he discovered that HEW had negligently tested it”)
(construing Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981)). Accordingly, to
the extent that Plaintiffs submitted Dr. Pérez’s affidavit to support their erroneous
argument that the clock did not start until they should have known the “real” or
medical cause of their injury, “including if negligence was a factor that contributed or
cause it,” the affidavit is irrelevant.5
In Skwira v. United States, the First Circuit observed that while Kubrick
clarified that knowledge of medical negligence is not necessary to start the clock, the
5

It seems that Plaintiffs initially proceeded under the assumption that Puerto Rico law, instead of federal
common law, governed the commencement of the statute of limitations under the FTCA. See Docket # 1, ¶ 6.1
(It was not until Plaintiffs received the certified copies of the medical records on July 28, 2010, that they
“became aware of the cause of death and the possibilities of negligence as it[s] source thus, the possible
existence of their cause of action under [Puerto Rico] law.”) (Emphasis added). If that were the case, Dr. Pérez’s
affidavit may have been relevant. Under Puerto Rico law, the statute of limitations “does not begin to run until
the plaintiff possesses, or with due diligence would possess, information sufficient to permit suit.” VillariniGarcía v. Hosp. Del Maestro, Inc., 8 F.3d 81, 84 (1st Cir. 1993). That is, for the clock to begin, Puerto Rico law
requires knowledge “not only of the harm but also the origin of the injury,” including “knowledge of the wrong
and a causal link between the wrong and some harm.” Id.
Similarly, in Merck & Co. v. Reynolds, 559 U.S. 633 (2010), the Supreme Court distinguished the courtcreated discovery rule exception (such as the one in Kubrick) from the statutory discovery rule provided in 28
U.S.C.§ 1658(b)(1), for claims involving “fraud, deceit, manipulation or contrivance,” in contravention of
securities laws. In the former, the clock starts when a plaintiff is on “inquiry notice.” That is, “the point where
the facts would lead a reasonably diligent plaintiff to investigate further.” Id. at 651. In the latter, like Puerto
Rico law, the running begins once a plaintiff has discovered all of the facts that “constitute the violation,”
including the fact of scienter, “an important and necessary element” of a violation of § 10(b) of the Securities
Exchange Act of 1934. Id. at 634.

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question of “what knowledge short of actual knowledge of negligence provides a
sufficient factual basis to trigger [the statute of limitations] under a discovery rule…
has dodged federal courts ever since.” 344 F.3d at 77. Construing Kubrick, the First
Circuit stated that the FTCA’s statute of limitations is triggered by “the discovery of
sufficient facts about the injury and its cause to prompt a reasonable person to inquire
and seek advice preliminary to deciding if there is a basis for filing an administrative
claim against the government.” Id. at 78.
Applying this test, the limitations clock on Plaintiffs’ wrongful-death action
began to run on the date of their injury, that is on March 1, 2010—the date of Matos’
death. See Skwira, 344 F.3d at 73 (“A cause of action for death is complete when death
occurs.”) (Parenthetically quoting Restatement (Second) of Torts § 899 cmt. c (1979)).
By then, they knew that the treatment Matos had received at SIM had been ineffective.
Indeed, they admit that after being discharged from SIM, Matos’ symptoms did not
improve. “He continued at home with abdominal pain throughout the night,” for which
the following morning he was taken to HURRA’s emergency room. Docket # 1, ¶ 4.6.
Plaintiffs also knew that Matos needed a surgery that was never performed because the
HURRA medical staff asserted—although it later proved to be false—that they did not
have an operating table that could accommodate Matos’ weight. See Docket # 234-1, ¶
7. But the clearest indication of Plaintiffs’ knowledge of the cause of their injury is
that, on March 1, 2010, they knew that Matos died within two days after he first
sought medical treatment at SIM and while he was still receiving medical treatment at
the Puerto Rico Medical Center for similar symptoms. By then, Plaintiffs had
knowledge of their injury (Matos’ suffering and premature death), and sufficient
knowledge of its probable cause (unsuccessful treatment at SIM and other medical
facilities) to trigger the statute of limitations.
Thus, as to Plaintiffs’ wrongful-death action, the circumstances of this case do
not warrant the application of the discovery rule. See Faura Cirino, 210 F. Supp. 2d at
52, (rejecting the application of the discovery rule where the patient died the same day

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that he was taken to the emergency room). This is so because the factual basis of
Plaintiffs’ wrongful-death action was not “inherently unknowable at the time of the
injury,” González, 284 F.3d at 290, n. 9, as it may happen where a patient
unexpectedly dies weeks or months after concluding medical treatment. It may be
unreasonable for a plaintiff in that situation to suspect that the patient’s death may be
related to the medical treatment. Here, in contrast, Matos died while he was still
receiving medical treatment at the Puerto Rico Medical Center. All of this happened
within two days after the medical treatment he received at SIM and HURRA proved
ineffective. Armed with the above-stated facts, Plaintiffs had to inquire among the
medical community and determine within the two year statute of limitations—that is,
on or before March 1, 2012—whether they had an actionable claim against the
Government. See Kubrick 444 U.S. at 123-24; see also Rotella, 528 U.S. at 556.
The analysis of Z.M.M.’s inherited action for the suffering that her father
endured shortly before his death6 reaches the same result, albeit through a different
path. Under the time-of-injury rule, the clock on the inherited action started to run on
February 27, 2010, after Matos was discharged from SIM. The discovery rule,
however, may have delayed the start of the limitations clock, at the latest, until March
1, 2010. By then, it had become clear that the medical treatment Matos received at the
different hospitals had failed to alleviate his suffering or prevent his death.
Accordingly, the Court holds that the running of the FTCA’s two-year statute
of limitations for all of Plaintiffs’ claims began on March 1, 2010. Since they filed
their administrative claims on April 15, 2012—over a month after the statute of
limitations expired—absent tolling of their claims on other grounds, Plaintiffs’ action
against the Government is time-barred.

6

Under Puerto Rico law, an unlawful death gives rise to two causes of action. “[O]ne is the personal action of
the original victim of the accident for the damages that the same suffered; and the other, the action which
corresponds exclusively and by own right to the deceased’s close relatives for the damages the death of their
predecessor caused them.” Cruz-Gascot v. HIMA-San Pablo Hosp. Bayamon, 728 F. Supp. 2d 14, 19 (D.P.R.
2010) (quoting Widow of Delgado v. Boston Ins. Co., 1 P.R. Offic. Trans. 823, 101 D.P.R. 598 (1973)).

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b. Equitable tolling cannot save Plaintiffs’ claims
The Court’s finding that the statute of limitations started at the time of death,
does not necessarily mean that the limitations period would have inevitably expired on
March 1, 2012. In certain circumstances, even when the clock has commenced to run,
if sufficient information to file an administrative claim7 “remains obscure in the face
of a plaintiff’s diligence in seeking to identify it,” equitable tolling may serve to
extend the filing deadline. Rotella, 528 U.S. at 561. Indeed, the Supreme Court
recently resolved a circuit split and held that “the FTCA’s time bars are
nonjurisdictional and subject to equitable tolling.” United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1638 (2015).
Equitable tolling serves to pause the running of a statute of limitations where a
party “‘has pursued his rights diligently but some extraordinary circumstance’ prevents
him from meeting a deadline.” Kwai Fun Wong, 135 S. Ct. at 1631 (quoting Lozano v.
Montoya Alvarez, 572 U.S. 1, ––, 134 S.Ct. 1224, 1231–1232). “It differs from the
[discovery rule] in that the plaintiff is assumed to know that he has been injured, so
that the statute of limitations has begun to run; but he cannot obtain information
necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by
the defendant.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990).8
While the discovery rule governs the time when the limitations period begins,
“equitable tolling instead halts the running of the clock” in cases where the clock has
started. Rakes, 442 F.3d at 24. Importantly, equitable tolling may be invoked only
when the “extraordinary circumstances” remain in effect at the time of a deadline, or

7

“[T]o file an administrative claim and preserve ones rights under the FTCA, one need only be in possession of
‘sufficient information for the agency to investigate the claims.’” Skwira, 344 F.3d at 81 (quoting SantiagoRamirez v. Sec’y of Dep’t of Def., 984 F.2d 16, 19 (1st Cir. 1993)).
8

See also Klehr v. A.O. Smith Corp., 521 U.S. 179, 192 (1997) (citing Cada for its description of the “difference
among various discovery rules and doctrines of ‘equitable tolling’ and ‘equitable estoppel’”); and United States
v. Ibarra, 502 U.S. 1, 4, n. 2 (1991)(citing Cada for its discussion on principles of equitable tolling).

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close enough, that they prevent the plaintiff “from meeting [that] deadline.” Kwai Fun
Wong, 135 S. Ct. at 1631.
Plaintiffs, however, explicitly waived any argument on equitable tolling
grounds. See Docket # 242, ¶ 2 (“equitable tolling… is irrelevant to the instant case”).
It is quite possible that Plaintiffs’ waiver rests on their erroneous assumption that,
under the discovery rule, the clock waits until a plaintiff has knowledge of all the
necessary elements of the cause of action. But even if Plaintiffs had not waived this
argument, they would not be entitled to equitable tolling on their claims against the
United States.
The reason for this is obvious: Plaintiffs’ delay in filing their administrative
claims against the Government had nothing to do with them lacking sufficient
information to file an administrative claim. Plaintiffs, in fact, filed a medical
malpractice suit against SIM, HURRA and related defendants in local court
comfortably within the FTCA’s limitations period.9
Plaintiffs candidly admit that their delay in suing the United States was because
they were unaware that SIM was deemed a covered federal entity under the Federally
Supported Health Centers Assistance Act. See Docket # 236, pp. 21-22. But “in a
medical malpractice case, knowledge of the federal status of the malpractitioner is
irrelevant” for purposes of determining the start of the limitations clock. Skwira, 344
F.3d at 77, n. 14. Moreover, Plaintiffs fail to show that they exercised reasonable
diligence in ascertaining this fact and reasonable diligence is a “sine qua non for
equitable tolling.” Sánchez v. United States, 740 F.3d 47, 55 (1st Cir. 2014), cert.
9

The savings clause of the FTCA, which allows for the substitution of the United States as the party defendant in
actions before state and federal courts, 28 U.S.C. § 2679(d)(5), cannot resurrect Plaintiffs’ claim. This provision
“excuses a plaintiffs’ failure to exhaust administrative remedies” if (1) the state court action is filed within the
FTCA’s statute of limitations and (2) “the plaintiff presents the claim to the appropriate federal agency within
sixty days after the dismissal of the state court action.” González, 284 F.3d at 291, n. 11. As the Government
correctly points out, the Westfall Act is inapplicable in this case because the United States was never substituted
as a the party defendant in the state court action and neither did Plaintiffs file their administrative claims within
six months from the date that case was dismissed. In any event, by failing to address this issue, Plaintiffs have
waived any argument that their state court action somehow tolled the statute of limitations on their FTCA claims.

Civil No. 13-1311 (SEC)

Page 14

denied, 135 S. Ct. 54, 190 (2014) (quoting Donahue v. United States, 634 F.3d 615,
629 (1st Cir. 2011). Indeed, Plaintiffs presented no evidence that they “made any
inquiry whatsoever as to the status of [SIM as a covered federal entity].” González,
284 F.3d at 291.10 Neither did they show that the United States fraudulently concealed
that SIM was a federally-funded hospital. See id. at 292 (“The doctrine of fraudulent
concealment tolls the statute of limitations where a plaintiff has been injured by fraud
and remains in ignorance of it without any fault or want of diligence or care on his
part.”) (Citations and internal quotations omitted). Under these circumstances,
principles of equitable tolling cannot save Plaintiffs’ claims against the United States.
IV.

Conclusion

For the reasons stated, the Court holds that Plaintiffs’ claims against the United
States are time-barred by the FTCA’s statute of limitations. The United States’ motion
for summary judgment is therefore GRANTED.

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 3rd day of June, 2016.
S/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge

10

Moreover, since the status of SIM as a covered entity under the Federally Supported Health Centers Assistance
Act is a matter of public record, knowledge of this status is imputed to Plaintiffs’ counsel. As the First Circuit
stated in Sánchez: “It’s not asking too much of the medical malpractice bar to be aware of the existence of
federally funded health centers that can be sued for malpractice only under the Federal Tort Claims Act.” 740
F.3d at 55 (quoting Arteaga v. United States, 711 F.3d 828, 834–35 (7th Cir. 2013)).