Timmons et al v. United States of America et al

Filing 43

ORDER: Defendant United States of America's [ECF No. 31 ] motion to dismiss and Defendant Conway Medical Center, Inc.'s [ECF No. 32 ] motion to dismiss, both of which were converted to motions for summary judgment, are GRANTED. Plaintiffs' claims against the United States are DISMISSED with prejudice. Plaintiffs' claims against CMC are DISMISSED without prejudice. Signed by the Honorable R. Bryan Harwell on 1/26/2017. (hcic, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
James Timmons, Individually and as Parent
and Natural Guardian of X.T., Shelly
Timmons, Individually and as Parent and
Natural Guardian of X.T.,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
United States of America and Conway
)
Medical Center, Inc.,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 4:15-cv-00638-RBH

ORDER

This matter is before the Court on Defendant United States of America’s [ECF No. 31]
motion to dismiss for failure to state a claim and Defendant Conway Medical Center, Inc.’s [ECF
No. 32] motion to dismiss for lack of subject matter jurisdiction and under the doctrine of
abstention.1 This Court converted the pending motions to dismiss to motions for summary
judgment by Text Order on November 30, 2016.
Procedural History
This medical malpractice action was filed on February 12, 2015 and brought pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 2671 - 2680. Plaintiffs alleged claims for negligence against
Defendants United States of America, Olukayode Akinlaja, M.D., Health Care Partners of South
Carolina, Inc. (HCPSC), and Conway Medical Center, Inc. Defendant Conway Medical Center
(“CMC”) moved to dismiss the complaint on March 30, 2015, arguing that a similar action was

1

Under Local Civil Rule 7.08 (D.S.C.), “hearings on motions may be ordered by the Court in its
discretion. Unless so ordered, motions may be determined without a hearing.” Upon review of the briefs,
the Court finds that a hearing is not necessary.

pending in state court and that the doctrines of res judicata and collateral estoppel require dismissal
of the federal lawsuit against it. On May 11, 2015, Defendants Akinlaja, HCPSC, and the United
States moved to dismiss the complaint arguing the claim was due to be dismissed because Plaintiffs
failed to file suit within six months of receiving the agency denial and equitable tolling does not
apply as a matter of law.
On February 24, 2016, the Court denied Defendants motions to dismiss without prejudice
and permitted the parties to engage in limited discovery for a period of 90 days on the issues of the
statute of limitations, equitable tolling, and whether CMC is a federal entity for subject matter
jurisdiction purposes. At the close of the limited discovery period, on June 10, 2016, Defendants
refiled their motions to dismiss. Defendants Akinlaja, HCPSC, and the United States filed their
motion pursuant to Rule 12(b)(6) again arguing Plaintiffs’ claims should be dismissed because
Plaintiffs failed to file a complaint against the United States within six months after Plaintiffs
received the agency’s final denial of the claim pursuant to 28 U.S.C. § 2401(b). Defendant CMC
filed its motion to dismiss pursuant to Rule 12(b)(1) arguing lacking of subject matter jurisdiction
and abstention.
On November 15, 2016, by Consent Order, the parties acknowledged that the United States
is the only federal defendant to be named pursuant to the Federally Supported Health Centers
Assistance Act, 42 U.S.C. § 233(a) and (g)-(n) and dismissed Defendants Akinlaja and HCPSC with
prejudice.
Defendants attached a stipulation of facts, declarations, affidavits, and other documents to
their motions to dismiss. Upon initial review of Defendants’ motions and Plaintiffs’ response, the
Court recognized the need to refer to matters outside the pleadings. On November 30, 2016, the
2

Court entered a Text Order placing the parties on notice of its intent to convert Defendants’ motions
to dismiss into motions for summary judgment under Rule 12(d) of the Federal Rules of Civil
Procedure. The Court invited Plaintiffs to supplement the record with any appropriate materials
outside the pleadings that should be considered in determining whether the United States is entitled
to summary judgment based on Plaintiffs’ alleged failure to file the Complaint within the prescribed
statute of limitations and whether equitable tolling should apply.
On December 23, 2016, Plaintiffs filed a memorandum indicating that they intended to rely
on materials already before the Court and did not plan to submit any additional materials to the
Court in consideration of the pending motions for summary judgment.
Stipulated Facts
Following the limited period of discovery, the parties stipulated to the following facts:
1.

Health Care Partners of South Carolina, Inc. (HCPSC) is a nonprofit organization consisting
of physicians and health care professionals who serve the health care needs of individuals
and families in the coastal area of South Carolina. These services include the care and
treatment of prenatal, labor and delivery, and postpartum care.

2.

Health Care Partners of South Carolina, Inc. was deemed to be an employee of the Public
Health Service pursuant to the Federally Supported Health Centers Assistance Act
(FSHCAA), 42 U.S.C. § 233(g)-(n), on October 15, 1993, redeemed on June 23, 1996, and
from January 1, 2011 to December 31, 2011. At all times relevant to the allegations
contained in the complaint of this matter Olukayode Akinlaja, M.D. (Akinlaja) was an
employee of HCPSC. Therefore, Dr. Akinlaja and HCPSC are entitled to coverage under the
Federal Tort Claims Act (“FTCA”) for claims for personal injury, including death, resulting
3

from the performance of medical, surgical, dental, or related functions, within the scope of
employment. 42 U.S.C. § 233(a).
3.

At the time of the pregnancy of Shelley Timmons (Timmons), she was provided care by
HCPSC for herself and her unborn child. Part of this care was provided by Dr. Akinlaja at a
HCPSC facility.

4.

Conway Medical Center (CMC) is a nonprofit medical center located at 300 Singleton
Bridge Road, Conway, South Carolina. CMC is not a federally supported health care center
under FSHCAA.

5.

Dr. Akinlaja had medical staff privileges in obstetrics and gynecology at CMC at all times
relevant to the allegations contained in the complaint. These privileges permitted Dr.
Akinlaja to admit his patients into CMC and provide medical care and treatment to these
patients while at CMC.

6.

At all times relevant to the allegations contained in the complaint, Dr. Akinlaja had
privileges at CMC, but he was not an employee or contractor of or by CMC. During
Plaintiffs’ labor and delivery, CMC employees followed directions/instructions given to
them by Dr. Akinlaja regarding Plaintiffs’ treatment.

7.

On October 18, 2011 Timmons was admitted to CMC by Dr. Akinlaja as her treating
physician, and remained her attending and treating physician for the birth of Timmons’ son
(XT) on October 19, 2011.

8.

On October 18, 2014, the plaintiffs filed a Notice of Intent to File Suit against all parties
named in the suit, save for the United States. The suit was filed in the South Carolina Court
of Common Pleas for Horry County under the case number 2013-CP-26-06934. On October
4

29, 2013, the plaintiffs, through her counsel, sent a letter to Clifford Portis (Retired CFO of
HCPSC) that included the Notice of Intent to Sue and the affidavit of Richard L. Stokes,
M.D. This case was closed without resolution on May 29, 2014.
9.

On October 16, 2013, plaintiffs, James Timmons and Shelley Timmons, filed an
administrative tort claim with the Department of Health and Human Services (“HHS”)
Region IV Office of General Counsel located in Atlanta, Georgia. On October 17, 2013, the
Region IV Office of General Counsel forwarded the original documents including the
original mailing envelope to the General Law Division of the Office of General Counsel in
Washington, D.C. The claims package was received by the General Law Division on
October 21, 2013.

10.

On October 17, 2013, plaintiffs, James Timmons and Shelley Timmons filed a duplicate
administrative tort claim on behalf of XT with HHS alleging medical malpractice by Dr.
Akinlaja and Health Care Partners with respect to care provided during plaintiff Shelley
Timmons’ labor and delivery at CMC. This administrative tort claim (Claim No. 20140003) was sent via facsimile to the HHS Office of General Counsel, General Law Division.
The duplicate claim was also sent by U.S. Postal Service.

11.

On October 17, 2013, plaintiff Shelley Timmons filed an administrative tort claim with HHS
on her own behalf alleging that she had experienced pain and suffering, medical expenses
and emotional distress as a result of the negligent medical care she received from Dr.
Akinlaja during her labor and delivery at CMC. This administrative tort claim (Claim No.
2014-0010) was submitted via facsimile to the General Law Division of the Office of
General Counsel.
5

12.

A letter dated June 18, 2014 from plaintiffs’ attorney, Shannon L. Felder, to Daniel Mendoza
of HHS requesting a status update on the administrative tort claims of the plaintiffs was
received by HHS on June 25, 2014.

13.

A letter dated June 19, 2014 was sent to plaintiffs’ attorney, Shannon L. Felder, informing
her that the administrative tort claims of her clients, James and Shelly Timmons, were
denied. The letter referenced Akinlaja and HCPSC, but not CMC. This letter was sent to
Shannon Felder, Esq., The Solomon Law Group, 1519 Richland Street, Columbia, SC
29201-2609. This letter was sent through the United States Postal Service by certified mail
with return receipt. On June 24, 2014, this letter was delivered to 1519 Richland Street in
Columbia, SC and the signature card was signed indicating receipt of this mailing.

14.

This letter concerning the claims in this case, ECF No. 12-1 Exhibit 10 was in fact received
by the Plaintiffs’ attorney’s office as indicated by ECF No. 12-1 Exhibit 11 and 12.

15.

On February 12, 2015, the plaintiffs filed the complaint in this matter.

16.

The Plaintiffs and Defendants, United States (representing Dr. Akinlaja and HCPSC) and
CMC, have agreed not to depose any witnesses relative to the Court’s Order dated February
24, 2016 permitting limited time for discovery concerning issues delineated in the order.
This agreement includes not deposing Brett Barr, Chief Financial Officer of CMC, Angela
Williford, Vice President of Quality at CMC, and H. Edward Wilder, Chief Financial Officer
of HCPSC. The parties have agreed to permit the declarations and affidavit of Barr,
Williford and Wilder to be considered by the Court in determining issues raised by the
parties in this matter.

6

Summary Judgment Standard
“The court shall grant summary judgment 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) (2010). “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
When no genuine issue of any material fact exists, summary judgment is appropriate. See
Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from
the evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the
mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"Once the moving party has met [its] burden, the nonmoving party must come forward with
some evidence beyond the mere allegations contained in the pleadings to show that there is a
genuine issue for trial." Baber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The
nonmoving party may not rely on beliefs, conjecture, unsupported speculation, or conclusory
allegations to defeat a motion for summary judgment. See Baber, 977 F.2d at 875. Rather, the
nonmoving party is required to submit evidence of specific facts by way of affidavits, depositions,
interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

7

Discussion
The United States argues that Plaintiffs’ claims against the United States (substituted as
defendant for Akinlaja and HCPSC) should be dismissed because Plaintiffs failed to file suit against
the United States within six months of receiving the final denial of their administrative claims
presented to the Department of Health and Human Services (HHS). Specifically, the United States
states that Plaintiffs’ administrative claims were denied by letter dated June 19, 2014 from HHS and
that the letter was received by Plaintiffs’ counsel on June 24, 2014. The United States contends that
because the instant lawsuit was not filed until February 12, 2015, Plaintiffs’ claims against the
United States are forever barred pursuant to 28 U.S.C. § 2401(b).
Plaintiffs respond that their lawsuit was timely filed because the June 19, 2014 letter from
HHS did not constitute a final administrative adjudication of all of their administrative claims.
Plaintiffs contend the June 19, 2014 letter was not a final denial of their claims because the
government did not make a determination as to any claims against CMC or its employees. Plaintiffs
further argue the government cannot avoid liability where its deemed governmental employee
directed and controlled the tortious activity that caused the injury. Finally, Plaintiffs argue that they
are entitled to equitable tolling based on the government’s failure to state the status of CMC or its
employees. Plaintiffs claim they did not file their lawsuit within six months of the June 19, 2014
letter because they believed the government was still investigating the status of CMC and its
employees and that HHS had not issued a final denial of their claims.
Title 28 U.S.C. § 2401(b) states:
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 or unless action is begun within
8

six months after the date of mailing, by certified or registered mail,
of notice of final denial of the claim by the agency to which it was
presented.
Until recently, the failure to file a lawsuit within the time period prescribed by § 2401(b) was
considered a jurisdictional bar. However, in United States v. Kwai Fun Wong, –––U.S. ––––, 135
S.Ct. 1625, 1629, 191 L.Ed.2d 533 (2015), the Supreme Court held that the FTCA's limitations
period is not a jurisdictional rule but a claims-processing rule that allows for equitable tolling.
Section 2401(b) “requires a plaintiff to bring a federal civil action within six months after a federal
agency mails its notice of final denial of his claim.” Raplee v. United States, 842 F.3d 328, 333 (4th
Cir. 2016). “Plaintiffs are entitled to equitable tolling only if they show that they have pursued their
rights diligently and extraordinary circumstances prevented them from filing on time.” Raplee, 842
F.3d at 333. Equitable tolling “is reserved for ‘those rare instances where - due to circumstances
external to the party’s own conduct - it would be unconscionable to enforce the limitation period
against the party and gross injustice would result.’” Id. (citing Harris v. Hutchingson, 209 F.3d 325,
330 (4th Cir. 2000)).
In this case, Plaintiffs’ claims against the United States are barred because their lawsuit was
not filed within six months after the date of mailing of the final denial of their administrative claims.
Plaintiffs’ administrative claims were denied by letter dated June 19, 2014. The June 19, 2014 letter
states in part:
On October 17, 2013, you filed two administrative tort claims
under the Federal Tort Claims Act . . . alleging that on October 18,
2011 and October 19, 2011, Dr. Olukayode Akinjala and Health
Care Partners of South Carolina, Inc., located in Conway, South
Carolina, committed medical malpractice by failing to provide
proper labor and delivery care to Mrs. Timmons, resulting in their
baby suffering Erb’s Palsy. . . .
9

This letter constitutes the notice of final determination of these
administrative tort claims, as required by 28 U.S.C. §§ 2401(b),
2675(a). The administrative tort claims of Shelly Timmons,
individually and James and Shelly Timmons, on behalf of X.
Timmons, a minor, are denied. The evidence fails to establish that
the alleged injuries were due to the negligent or wrongful act or
omission of a federal employee acting within the scope of
employment.
If your clients are dissatisfied with this determination, they may . . .
file suit against the United States in the appropriate federal district
court within six (6) months from the date of mailing of this
determination (28 U.S.C. § 2401(b)).
[ECF No. 12-11]. The letter identifies the claims submitted by Plaintiffs by the appropriate claim
number and unambiguously denies those claims. The letter specifically states that the letter
constitutes a final determination of the administrative claims and references the applicable statutes.
Additionally, the letter instructs that if Plaintiffs wish to pursue their claims further they must either
file a written request for reconsideration within six months or file a lawsuit against the United States
within six months from the date of mailing of the letter. Viewing the evidence in the light most
favorable to the Plaintiffs, the June 19, 2014 letter was a clear and unambiguous final denial of
Plaintiffs’ administrative claims. Accordingly, the six month limitations period for filing a lawsuit
in federal court against the United States under 28 U.S.C. § 2401(b) began to run on the date the
June 19, 2014 letter was mailed.
Plaintiffs’ position that the government’s failure to specifically deny the claims as to CMC
and its employees created a communication void and that the Plaintiffs did not file suit within the
prescribed six month period because they were waiting for an agency denial of the claims against
CMC and its employees is inconsistent with the record in this case. First, Plaintiffs’ SF-95 forms
and attachments specifically identify Dr. Akinlaja and HCPSC as potential defendants but do not
10

identify CMC or its employees as potential defendants. See [ECF Nos. 12-3, 12-4, 12-5, and 12-6].
From the face of Plaintiffs’ SF-95s, it does not appear that Plaintiffs submitted an administrative
claim with respect to CMC or its employees. Second, the Certificate of Pre-Suit Mediation and
Impasse filed in connection to the state court action reveals Plaintiffs’ intention to pursue their
allegations against CMC and its employees in state court while pursuing their allegations against Dr.
Akinlaja and HCPSC under the FTCA. See [ECF No. 32-3]. Third, before Plaintiffs’ administrative
claims were denied on June 19, 2014, Plaintiffs initiated a state court medical malpractice action
against CMC only that was filed on May 29, 2014. See [ECF No. 32-4]. Finally, the affidavit of
Marian Scalise and the emails from Plaintiffs’ counsel unequivocally show that Plaintiffs were
pursuing both a state court action against CMC because it did not fall under the FTCA, and a
parallel federal action under the FTCA against Dr. Akinlaja and HCPSC. Plaintiffs’ claim that there
existed a communication void with regard to CMC is simply not supported by the record.
Because the six month limitations period found in 28 U.S.C. § 2401(b) began to run on the
date the June 19, 2014 denial letter was mailed, the instant lawsuit against the United States filed on
February 12, 2015 is untimely. Plaintiffs argue, however, that they are entitled to equitable tolling
because they believed the government had not issued a final denial as to CMC and the government
was still investigating their claims against CMC. As discussed above, Plaintiffs’ argument is belied
by Plaintiffs’ SF-95 forms, the Certificate of Pre-Suit Mediation and Impasse, the state court lawsuit
initiated against CMC only, Marian Scalise’s affidavit, and Plaintiffs’ counsel’s own emails.
Plaintiffs failed to demonstrate that they pursued their rights diligently or that extraordinary
circumstances prevented them from filing their lawsuit on time. See Raplee, 842 F.3d at 333.
Plaintiffs are therefore not entitled to equitable tolling of § 2401(b)’s limitations period.
11

Plaintiffs also argue that the government cannot avoid liability where its deemed
governmental employee directed and controlled the tortious activity of CMC’s employees.
Plaintiffs suggest there is a question of fact as to whether CMC’s employees are federal employees
because Dr. Akinlaja directed their actions during the labor and delivery. This argument, however,
ignores the fact that despite any questions regarding the status of CMC’s employees,2 Plaintiffs were
2

Plaintiffs argue “[t]he narrative submitted with the SF95 is rife with allegations of negligence as to
CMC” and that “CMC was absolutely identified as a person/entity involved.” [Plaintiffs’ Memorandum in
Opposition, ECF No. 34, at 3]. However, the SF95s/claim forms submitted by Plaintiffs state:
Defendants Akinjala and Healthcare Partners were negligent, grossly
negligent, willful, wanton and reckless in the following particulars and
deviated from the appropriate standards of care:
a.
in failing to offer the option of a cesarean section versus a
trial of labor in a patient with polyhydraminos and large
fetus size and in failing to disclose the risk/benefit
alternatives of each;
b.
in failing to monitor adequately the labor and delivery of a
patient with known polyhydraminos and large fetus size;
c.
in failing to properly diagnose and assess fetal
hyperstimulation due to increased frequency of
contractions;
d.
in continuing to prescribe Pitocin for too long at an
excessive dose where the fetus was already
hyperstimulated in the labor process and where continuing
Pitocin is contraindicated and increasing the dosage is
further contraindicated;
e.
in failing to offer an expectant patient in labor a cesarean
rather than vaginal delivery when the baby was noted to
be in fetal distress;
f.
in failing to institute proper intrauterine resuscitation to a
patient in labor when the baby was noted to be in fetal
distress;
g.
in failing to offer the option of a cesarean section rather
than a vacuum-assisted vaginal delivery when it became
apparent one of the two methods would need to be
employed in the face of fetal distress and in failing to
disclose the risk/benefit alternatives of each; and
h.
in failing to assess and inform a patient in labor and
delivery of the risks associated with a vacuum-assisted
vaginal delivery, specifically risks outlined in a black box
warning issued by the FDA regarding increased morbidity
and mortality, as well as the significantly increased risk of
brachial plexus injuries when compared to spontaneous
deliveries or cesarean delivery.
[ECF Nos. 12-3, 12-4, 12-5, 12-6]. Nowhere on claim forms or the attached narrative summary do
Plaintiffs identify CMC or its employees as potential defendants or advance specific negligence allegations

12

issued a final denial of their administrative claims by letter dated June 19, 2014 that unambiguously
stated “[t]he administrative tort claims of Shelly Timmons, individually and James and Shelly
Timmons, on behyalf of X. Timmons, a minor, are denied.” The letter further advised Plaintiffs of
the six month filing deadline. Plaintiffs did not file this lawsuit until February 12, 2015, more than
six months after the June 19, 2014 letter was mailed to Plaintiffs’ counsel.
In conclusion, Plaintiffs’ lawsuit against the United States is untimely because it was not
commenced within six (6) months of the date of mailing of the final denial of Plaintiffs’
administrative claims and Plaintiffs have failed to set forth a sufficient basis for equitable tolling.
The United States is therefore entitled to summary judgment.
CMC filed a motion to dismiss arguing that if the United States’ motion for summary
judgment was granted, the federal lawsuit against CMC should be dismissed for lack of jurisdiction
and on the basis of abstention because there is an identical state court action pending against CMC.
Plaintiffs filed a response agreeing that if the United States was dismissed from the federal lawsuit,
the instant case against CMC should be dismissed and the state court action against CMC would
then proceed. This Court agrees and grants CMC’s motion, with Plaintiffs’ consent.
Conclusion
For the reasons stated above, Defendant United States of America’s [ECF No. 31] motion to
dismiss and Defendant Conway Medical Center, Inc.’s [ECF No. 32] motion to dismiss, both of
which were converted to motions for summary judgment, are GRANTED. Plaintiffs’ claims

against them. In any event, even if Plaintiffs intended to advance administrative claims against CMC and/or
its employees, the June 19, 2014 denial letter from HHS was an unequivocal final denial of the
administrative claims submitted by Plaintiffs, regardless of how they may have been characterized or should
have been characterized.

13

against the United States are DISMISSED with prejudice. Plaintiffs’ claims against CMC are
DISMISSED without prejudice.
IT IS SO ORDERED.
January 26, 2017
Florence, South Carolina

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

14