Alicia Marie Ramos v. U.S. Department of Health and Human Services ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15020 ELEVENTH CIRCUIT
JUNE 14, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 6:09-cv-00276-GJK
ALICIA MARIE RAMOS,
As Personal Representative of the
Estate of James J. Ramos,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
The United States Department of Health
and Human Services,
llllllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 14, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Plaintiff-appellant Alicia Ramos (Ramos) filed a Federal Tort Claim Act
(FTCA) complaint against the United States Department of Health and Human
Services (DHHS) on February 11, 2009, seeking compensation for the medical
negligence and wrongful death of her father James Ramos (James). The district
court dismissed the complaint for lack of subject-matter jurisdiction, finding that
Ramos had failed to present the tort claim to DHHS within two years of the date
on which the cause of action accrued. The court further concluded that Ramos
was not entitled to equitable tolling because the defendant did nothing to
deliberately conceal information and Ramos’s counsel failed to act with due
diligence in pursuing the claim. Ramos now appeals.
I. Background
James Ramos had a history of deep vein thrombosis, supraventricular
tachycardia, and pulmonary embolism. In early December 2004, he was treated at
the Pine Hills Family Health Center for leg pain. He returned on December 29,
2004 complaining of difficulty breathing. James died on December 31, 2004. The
medical examiner conducted an autopsy on January 10, 2005 and concluded that
James had died of a massive pulmonary embolism. As the parties stipulate, Ramos
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learned at that time that she had a potential cause of action against Pine Hills and
she requested copies of his medical records from Pine Hills by letter and in person
on several occasions up to and including December 2005. Despite her requests,
Pine Hills turned over only six pages of James’s medical records. The entire
record, however, consisted of seventy-seven pages.
On November 6, 2006, Ramos filed for a ninety-day extension of the Florida
Statute of Limitations under Fla. Stat. § 766.104(2). On March 31, 2007, Ramos
sent Pine Hills a letter of her intent to file suit for medical malpractice and
wrongful death. A few days later, on April 4, Pine Hills notified Ramos that it was
covered by the FTCA, 28 U.S.C. § 1346. Ramos then filed an administrative
claim with DHHS on August 2, 2007. DHHS denied the claim as time-barred
under 28 U.S.C. § 2401(b) and informed Ramos that she could seek
reconsideration with the agency or file suit in district court within six months.
After Ramos requested and was denied reconsideration on August 11, 2008, she
filed the instant complaint on February 11, 2009.
DHHS moved to dismiss the complaint for lack of subject-matter
jurisdiction because the complaint was barred by the two-year statute of
limitations under § 2401(b). According to DHHS, the claim arose on January 10,
2005 because on this date Ramos was aware that she had a potential cause of
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action against Pine Hills. Because Ramos failed to present her administrative
claim to DHHS within two years of that date, DHHS argued that the complaint
was untimely.
Although Ramos conceded that she was aware that she had a cause of action
as early as January 2005, she argued that she did not know that the government
was the proper defendant until April 4, 2007 when she learned Pine Hills was
federally funded. Thus, Ramos argued that her claim did not accrue until that date.
Alternatively, Ramos argued that the court should consider equitable tolling of the
limitations period because she had diligently pursued her claim.
After conducting an evidentiary hearing on the statute of limitations and
equitable tolling, the district court concluded that complaint was untimely because
the limitations period commenced on January 10, 2005 when Ramos knew of both
James’s death and its cause. The court then considered equitable tolling and found
that Ramos had not shown that Pine Hills fraudulently concealed its federal
funding or that she acted with due diligence in pursuing her claims. The court also
rejected Ramos’s claim that the ninety-day extension of the limitations period
under state law rendered her complaint timely. Accordingly, the court dismissed
the complaint as untimely. This is Ramos’s appeal.
II. Standard of Review
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We review de novo a dismissal for lack of subject-matter jurisdiction.
Broward Gardens Tenants Ass’n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002).
“We review de novo the district court’s interpretation and application of the statute
of limitations.” Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th
Cir. 2008) (citation and internal quotation marks omitted). We also review a
district court’s legal decision on equitable tolling de novo. Helton v. Sec’y for
Dep’t of Corr., 259 F.3d 1310, 1312 (11th Cir. 2001). The district court’s
determinations of the relevant facts will be reversed only if clearly erroneous.
Dorsey v. Chapman, 262 F.3d 1181, 1185 (11th Cir. 2001).
III. Discussion
The FTCA is a limited waiver of sovereign immunity. We narrowly construe
that waiver and are careful not to expand it. Turner ex rel. Turner v. United
States, 514 F.3d 1194, 1200 (11th Cir. 2008). Plaintiffs may file a claim under the
Act where “the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act of omission occurred.” 28
U.S.C. § 1346(b)(1). Under the FTCA, “[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).
Additionally, to be timely, the lawsuit must be filed within six months of receipt of
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the agency’s final decision. Phillips v. United States, 260 F.3d 1316, 1317 (11th
Cir. 2001).
Ramos argues that the district court erred by dismissing her complaint as
time-barred because (a) the court should have considered a December 2005 letter
to Pine Hills sufficient notice of her intent to sue thus triggering a duty to Pine
Hills to notify her of its federal status; (b) the court erroneously found that the
claim accrued on January 10, 2005, as she was unaware of the government’s
involvement at that time; (c) the court should have applied equitable tolling, as
Pine Hills withheld records that would have identified it as a federally-funded
clinic and she acted with due diligence to pursue her claims; and (d) the court
should have tolled the limitations period based on the ninety-day extension
requested under Florida law.
A. Statute of Limitations under the FTCA
In United States v. Kubrick, 444 U.S. 111 (1979), the Supreme Court held
that a medical malpractice claim accrues “when the plaintiff knows both the
existence and the cause of his injury,” even if he does not yet know that “the acts
inflicting the injury may constitute medical malpractice.” Id. at 113, 122. “[A]
medical malpractice claim under the FTCA accrues when the plaintiff is, or in the
exercise of reasonable diligence should be, aware of both [his] injury and its
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connection with some act of the defendant.” McCullough v. United States, 607
F.3d 1355, 1359 (11th Cir. 2010) (quoting Price v. United States, 775 F.2d 1491,
1494 (11th Cir. 1985)). This principle has been extended to wrongful death claims
under the FTCA, and such a claim accrues “when the plaintiff knows, or
exercising reasonable diligence should know, both of the decedent’s death and its
causal connection with the government.” Diaz v. United States, 165 F.3d 1337,
1340 (11th Cir. 1999). By “causal connection with the government,” we do not
mean that the limitations period does not accrue until the plaintiff is aware of the
government’s role; “the statute of limitations under the FTCA does not wait until a
plaintiff is aware that an alleged tort-feasor is a federal employee.” Garza v. U.S.
Bureau of Prisons, 284 F.3d 930, 936 (8th Cir. 2002) (quoting Gould v. United
States Dep’t of Health & Human Servs., 905 F.2d 738, 745 (4th Cir. 1990)).
Here, Ramos admitted that she was aware of James’s death and its cause on
January 10, 2005. She argues, however, that the cause of action did not accrue
until she learned of the government’s role in April 2007. We disagree.
Under our caselaw, Ramos’s knowledge of her father’s death and the cause
of his death was sufficient to trigger the statute of limitations clock. That Ramos
did not learn until later that the government was the proper defendant does not
alter this analysis. see Garza, 284 F.3d at 936. Accordingly, because Ramos did
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not file her administrative claim within two years of January 10, 2005, the district
court properly concluded that the claim was untimely. The question then remains
whether the limitations period should equitably toll.
B. Equitable Tolling
The general rule is that statutes of limitations are subject to equitable
tolling. See United States v. Locke, 471 U.S. 84, 94 n.10 (1985). But we have
never decided whether the rule extends to claims under the FTCA and we need not
do so in this case because even if we assume it applies, Ramos is not entitled to
relief.
Equitable tolling is a form of extraordinary relief that courts have extended
“only sparingly.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).
Equitable tolling is appropriate only when a movant untimely files because of
extraordinary circumstances that are both beyond her control and unavoidable
even with diligence. Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006).
At the evidentiary hearing, Ramos’s counsel conceded that there was a
government website listing federally funded clinics, that Pine Hills was listed on
the site, and that he had been unaware of and had not checked the website.
Ramos’s counsel further admitted that Pine Hills’s own website identified it as a
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recipient of federal funds but that he did not consult the website until August
2007.
Ramos nevertheless argues that Pine Hills bore the burden of notifying her
that the government was the proper defendant and that it should have done so
when counsel sent Pine Hills a letter in December 2005 requesting medical
records. We disagree. Although Ramos contends that Pine Hills should have
advised her that it was federally funded when she sent the December 2005 letter
seeking her records, Pine Hills had no such obligation. Nothing in that letter
indicated notice of intent to file suit; as soon as counsel sent the notice of intent to
sue in March 2007, Pine Hills immediately notified counsel that the clinic was
federally funded. Moreover, as counsel conceded, Pine Hills own website
indicated it was federally funded and the government’s website listed Pine Hills as
one of its clinics. Counsel simply failed to diligently research the clinic. He
cannot now shift the blame to the government by seeking equitable tolling. See
Gould, 905 F.2d at 745.
We also reject Ramos’s claim that the government fraudulently concealed
its involvement, thus preventing her from learning it was the proper defendant.1
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We further reject Ramos’s claim that Pine Hills’s failure to turn over records prevented
her from discovering its government connection. Having reviewed the medical records at issue,
we agree with the district court that nothing in the records would have alerted Ramos to Pine
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“When the fraud goes undiscovered because the defendant has taken positive steps
after the commission of the fraud to keep it concealed, then the statute of
limitations is tolled until the plaintiff actually discovers the fraud. ‘Fraudulent
concealment must consist of affirmative acts or representations which are
calculated to, and in fact do, prevent the discovery of the cause of action.’” In re
Int’l Admin. Servs., Inc., 408 F.3d 689, 701 (11th Cir. 2005) (citations omitted).
The facts of this case do not show any concealment by the government or Pine
Hills.
C. Extension under State Law
Finally, Ramos argues that the ninety-day extension in the limitations period
under state law should render her complaint timely. We disagree. The limitations
period is set by the FTCA, see 28 U.S.C. § 2401(b), and thus state law is not
applicable. See, e.g., Phillips, 260 F.3d at 1318-19 (concluding that the Georgia
renewal statute did not impact the applicable statute of limitations under the
FTCA).
IV. Conclusion
For the foregoing reasons, we agree with the district court’s conclusion that
Ramos’s complaint was time-barred.
Hills’s status as a federally-funded clinic.
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AFFIRMED.
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