Boyd et al v. United States of America et al
Filing
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ORDER denying 15 Motion to Dismiss for Lack of Jurisdiction, permitting parties to conduct discovery for a two-month period from the date of this order and allowing defendant to refile a motion to dismiss if it deems relevant. Signed by Honorable Joseph F Anderson, Jr on 08/01/2012.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Sheila Boyd and Linzy Boyd,
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Plaintiffs,
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vs.
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United States of America and Palmetto )
Health Alliance, d/b/a Palmetto
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Richland Memorial Hospital,
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Defendant.
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C/A No.: 3:11-cv-3241-JFA
ORDER
This matter comes before the court pursuant to the defendant’s motion to dismiss
(ECF No. 15). The parties have briefed the issues, and the court also invited oral
argument. For the reasons stated below, the court hereby denies the motion without
prejudice. The parties are permitted to engage in limited discovery for a period of two
months related to the question of when the claim accrued. The court finds that at this
stage there is not a sufficient record before it for the resolution of this issue. At the
conclusion of the limited discovery period, the defendant may raise the statute of
limitations defense anew in a motion to dismiss. As will be discussed below, the court
finds the plaintiffs’ alternative defenses against the motion unpersuasive.
I.
FACTUAL AND PROCEDURAL HISTORY
This case arises from allegations of medical malpractice stemming from a surgery
performed at Richland Memorial Hospital by Dr. Irving Smith on Sheila Boyd. After
referral from her primary care physician, Mrs. Boyd saw Dr. Smith, a gynecologist who
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advised her that surgery was necessary for an ovarian cyst. The surgery took place on
December 1, 2008. Mrs. Boyd had given informed consent for a laparoscopic exam and
left ovarian cystectomy. During the course of the exam, Dr. Smith transitioned to an
open laparotomy and engaged in lysis of Mrs. Boyd’s abdominal adhesions. Dr. Smith
perforated a segment of Mrs. Boyd’s bowel, requiring removal of a portion of the bowel
and a partial bowel resection with an anastomosis.
Dr. Smith also performed a
supracervical hysterectomy and removed part of the uterus and both fallopian tubes,
without the prior consent of Mrs. Boyd.
Following her surgery, Mrs. Boyd experienced post-operative gastrointestinal
problems, and she was not allowed to leave the hospital until December 7, 2008. She
alleges she experienced her first episode of fecal incontinence the following day, and that
such episodes continued—“with increasing frequency”—over the next several months.
(Pls.’ Response Opp. Mot. Dismiss 6, ECF No. 26.) Mrs. Boyd reported the fecal
incontinence to a nurse practitioner for her primary care physician on October 2, 2009.
The nurse practitioner (Evelyn May) noted that the problem may have been related to a
herniated disc or the partial bowel resection, and she referred Mrs. Boyd to a
Gastroenterologist.
The parties dispute when the claim accrued—when Mrs. Boyd first had notice that
her gastrointestinal problems may have been related to her December 1, 2008 surgery.
The plaintiffs contend that the claim accrued on Mrs. Boyd’s October 2, 2009 visit to the
nurse practitioner. Although a more definitive diagnosis of the connection did not occur
until months later, Mrs. Boyd alleges she learned of the possible connection at that time.
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The defendants contend that the complications immediately after the surgery dictate that
the claim accrued at that time, immediately following the surgery.
On December 1, 2010, Plaintiffs filed a Notice of Intent to Sue (NOI) in state
court. Because they allege they did not receive notice of Dr. Irving’s status as a deemed
federal employee until April 14, 2011, they did not file the administrative claim with the
Department of Health and Human Services (DHHS) until April 20. They filed the State
court complaint in the Court of Common Pleas, Richland County on April 26, 2011. The
case was removed to this court, and the court substituted the United States as defendant.
This court dismissed the case (3:11-cv-1201-JFA) without prejudice because the
administrative remedies had not been exhausted at that point. On November 29, 2011,
the plaintiffs re-filed a complaint in this court.
The plaintiffs re-filed because the
administrative claim had been denied, which permits the party to file an action in the
district court. The defendant next filed the instant motion to dismiss.
II.
LEGAL STANDARD
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to move for
dismissal for lack of subject matter jurisdiction. This claim is governed by the Federal
Tort Claims Act (FTCA), which includes a statute of limitations providing that a “tort
claim against the United States shall be forever barred unless it is presented in writing to
the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. §
2401(b). This requirement of filing an administrative claim is jurisdictional. Kokotis v.
U.S. Postal Service, 223 F.3d 275, 278–79 (4th Cir. 2000). Plaintiffs bear the burden of
proving that the their FTCA administrative claim was timely such that this court possess
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subject matter jurisdiction. Johnson v. Smithsonian Institution, 189 F.3d 180, 189 (2nd
Cir. 1999).
In ruling on a 12(b)(1) motion, the court may consider the pleading’s
allegations as jurisdictional evidence and may also consider evidence outside the
pleadings. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991).
III.
DISCUSSION
Defendant brings the motion to dismiss arguing that the action is not timely
because the claim accrued on Dec. 1, 2008, the date of the surgery, but the plaintiffs did
not file the administrative claim until April 20, 2011, more than two years after the claim
accrued. 28 U.S.C. § 2401(b). Plaintiff contests the motion on three grounds.
a. Date on Which the Claim Accrued
Plaintiffs first argue that the claim did not accrue until Mrs. Boyd learned from a
nurse practitioner of the possible connection between the surgery and her ongoing bowel
problems. Though the general rule under the FTCA is that a claim accrues at the time of
injury, in medical malpractice cases, the claim does not accrue until the plaintiff is aware
of both the injury and its cause. Kubrick v. United States, 444 U.S. 111, 120 (1979);
Gould v. U.S. Dep’t of Health & Human Servs., 905 F.2d 738, 742 (4th Cir. 1990). A
plaintiff has such knowledge when she becomes aware of “the critical facts that [s]he has
been hurt and who has inflicted the injury.” Kubrick, 444 U.S. at 122. The plaintiff need
only have some “elemental knowledge” of the claim, she need not “have complete
knowledge of all elements or a legal understanding of the nature of the claim before [her]
claim exists.” Lekas v. United Airlines, Inc., 282 F.3d 296, 299 (4th Cir. 2002).
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Plaintiffs argue that the claim accrued on the October 2, 2009, visit to the nurse
practitioner when she learned that the surgery may have caused her bowel problems
Plaintiffs admit that the bowel problems began immediately following surgery and
“continued with increasing frequency over the next several months.”
They argue,
however, that the claim did not accrue until she spoke with the nurse practitioner and
learned of the possible connection to her surgery the year before. On the other hand, the
defendant argues that Mrs. Boyd knew the injury and cause immediately.1 Defendant
argues that immediately following the surgery she experienced problems and thus, at that
time, Mrs. Boyd knew of both the injury and the cause, and that claim accrued at that
point.
The court finds neither argument convincing. Rather, the claim likely accrued
sometime between the two dates argued by the parties. Though defendant contends the
claim accrued immediately after surgery, at that time, it was likely not clear that the
problem would persist. In other words, it was some time after the surgery before Ms.
Boyd was aware of the true nature of her injury and that it would persist, and that the
bowel problems were not the result of something else that would clear up. See Kerstetter
v. United States, 57 F.3d 362, 364 (4th Cir. 1995) (finding that plaintiffs’ claim did not
accrue until after they were aware that an injury related to a surgery was permanent).
On the other hand, Mrs. Boyd did not inquire about the “chronic diarrhea” with a
medical professional until ten months after the surgery. Plaintiffs contend that the claim
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Plaintiffs do not contest that they were informed of the bowel perforation, they argue that were not informed that
complications could result from the procedure.
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accrued at that time and rely on Kubrick where the court held that the plaintiff had to
learn of the connection between hearing loss and surgery for a leg wound before the
claim accrued. In Kubrick, the court reasoned that once a plaintiff knew of the injury and
its cause—not when the plaintiff learns that the injury was the result of negligence—the
plaintiff is on inquiry notice and should inquire further to protect her rights. In this case,
the connection was direct—Mrs. Boyd immediately learned that the surgery involved a
bowel resection, so there is not the need for a third-party to make the connection—she
already knew the connection existed.
Accordingly, once Mrs. Boyd learned of the
persistent nature of the injury, she was armed with the critical facts.
The record currently before the court, however, is insufficient to indicate when
that date might be. Because the court believes that the claim likely accrued sometime
between the surgery and the visit to the nurse practitioner, the court directs the parties to
engage in limited discovery relevant to this time period.
b. Savings Clause 28 U.S.C. § 2679(d)(5)
Congress amended the FTCA with the Westfall Act in 1988 to include a savings
clause to protect a claimant who files a claim governed by the FTCA in the wrong forum.
The savings clause provides:
. . . any civil action or proceeding commenced upon such claim in a
State court shall be removed without bond at any time before trial by the
Attorney General to the district court of the United States for the district
and division embracing the place in which the action or proceeding is
pending
...
. . . 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 the underlying civil action was commenced, and . . .
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28 U.S.C. § 2679(d)(2) & (d)(5). Plaintiffs argue in the alternative that, even if the claim
accrued on December 1, 2008, they can avail themselves of the savings clause because
the notice of intent (NOI) filed in state court constitutes a “proceeding” as the term is
used in this statute. They note that a NOI is a required prerequisite for the filing of a
complaint. Plaintiffs’ concede they cannot find a case addressing this precise issue, but
cite other cases that have construed the term proceeding broadly. Plaintiffs argue that,
because they filed the NOI on Dec. 1, 2010, they fall within the statute of limitations
even if this court finds that he claim accrued on the earliest possible date, December 1,
2008.
The defendant argues that the savings clause only applies to the date the complaint
was filed in state court. Defendant argues that there is no support under FTCA precedent
for the plaintiffs’ theory. Moreover, the defendant argues that numerous courts have held
that state tolling provisions are inapplicable under the FTCA. See Santos ex rel. Beato v.
United States, 559 F. 3d. 189, 193 (3d Cir. 2009); Phillips v. United States, 260 F.3d
1316, 1319 (11th Cir. 2001); Pipkin v. U.S. Postal Service, 951 F.2d 272, 274–75 (10th
Cir. 1991); Vega-Velez v. United States, 800 F.2d 288, 290 (1st Cir. 1986); Mendiola v.
United States, 401 F.2d 695, 697 (5th Cir. 1968); Jones v. United States, 126 F. Supp. 10,
11–12 (D.D.C. 1954).
Though these cases do not answer the question presented in this case directly, the
court finds that they foreclose the argument the plaintiffs advance. The cases cite a need
for uniformity in federal law, and accordingly, reject various state rules and exceptions in
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order to maintain uniformity under federal law. Adopting the plaintiffs’ argument would
create a different rule for cases filed in S.C., and such a result would run afoul of the
logic underlying the cases cited above.
Accordingly, the court finds that term
“proceeding” as used in the statute does not include the NOI filed in state court such that
the date the NOI was filed, as opposed to the date the complaint was filed, would trigger
the savings clause.
c. Equitable Tolling
Plaintiffs’ final argument is that the FTCA statute of limitations should be
equitably tolled because of the conduct of the defendant. Primarily, plaintiffs rely on the
fact that the status of Dr. Irving as a federal employee was not disclosed until April 19,
2011, more than four months after proceedings had begun in this case. Plaintiffs indicate
they had difficulty ascertaining which practice or practices with which Dr. Irving was
affiliated. Even after being served with the NOI, Dr. Smith did not disclose his status.
Defendants argue that, first, it is unclear whether the Fourth Circuit would allow
equitable tolling, and second, even if applied, the facts of this case do not support its
application. Two district courts that have considered the issue did find it likely that
equitable tolling would be available in the Fourth Circuit. See Bohrer v. City Hosp., Inc.,
681 F. Supp. 2d 657, 675 (N.D.W. Va. 2010) (noting that “equitable tolling is likely not
available in FTCA cases,” because the power to consent is left to Congress, and unlike in
other cases, the FTCA does not provide for a tolling provision. Because the court found
it possible that it may apply, the court did consider the issue but found it did not apply.);
Gibson v. United States, 2011 WL 1087933, *4 (S.D.W. Va. 2011) (“It is not clear to the
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Court that equitable tolling applies because of the Fourth Circuit's strict position on the
jurisdictional nature of the FTCA's general statute of limitations. However, even if the
Court were to assume that it could apply, Plaintiff is still unlikely to succeed.”).
Cases that have recognized equitable tolling require some type of misconduct by
the adversary. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (requiring that
“the complainant has been induced or tricked by his adversary's misconduct into allowing
the filing deadline to pass.”). The defendant argues that the plaintiffs never asked them
directly, and therefore, there is no misconduct on its part. See Gould v. U.S. Dep’t of
Health & Human Services, 905 F.2d 738, 745 (4th Cir. 1990) (citing Van Lieu v. United
States, 542 F.Supp. 862, 866 (N.D.N.Y.1982)) (“The government is under no obligation
to notify every prospective plaintiff of its identity and involvement through its employees
in all potential legal actions.”). Rather, the defendant argues that this case is a simple
case of failure to exercise due diligence on the part of the plaintiffs, where courts have
not applied equitable tolling.
See Irwin at 96.
The defendant also notes that the
Government operates a hotline and website to provide such information to the public.
Without taking a position on whether or not the Fourth Circuit may adopt
equitable tolling, the court finds that the facts of this case do not merit its application.
The plaintiff has not indicated any misconduct or misrepresentations on the part of the
defendant. The facts indicate that it was merely a case of doing nothing rather than doing
something deliberately misleading. Accordingly, the court finds that equitable tolling
does not apply to this case.
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IV.
CONCLUSION
As noted above, the court finds plaintiffs’ Savings Clause and Equitable Tolling
arguments unconvincing. Accordingly, plaintiffs need not raise these issues at the end of
the limited discovery period. However, because the court is unconvinced by either
party’s position related to when the claim accrued, the parties will be permitted to
conduct discovery for a two-month period from the date of this order. Following that
period, the defendant may, if it deems relevant, re-file a motion to dismiss. Accordingly,
the court denies the defendant’s motion to dismiss without prejudice.
IT IS SO ORDERED.
August 1, 2012
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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