Phillips v. Generations Family Health Center ( 2016 )

15-2656-cv
Phillips v. Generations Family Health Center
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
22nd day of September, two thousand sixteen.
Present: ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
________________________________________________
CHRISTOPHER PHILLIPS,
Administrator for the Estate of Karen Cato,
Plaintiff-Appellant,
-v- No. 15-2656
GENERATIONS FAMILY HEALTH CENTER,
Defendant-Appellee.
________________________________________________
For Plaintiff-Appellant: GERHARDT M. NIELSON, Pegalis & Erickson, LLC, Lake
Success, NY (Vincent M. DeAngelo, Offices of Vincent
DeAngelo, LLC, Weatogue, CT, on the brief).
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For Defendant-Appellee: DAVID C. NELSON (Lauren M. Nash & Sandra S. Glover, on
the brief), Assistant United States Attorneys, for Deirdre M.
Daly, United States Attorney for the District of Connecticut,
Hartford, CT.
Appeal from the United States District Court for the District of Connecticut (Bryant, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
and DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Christopher Phillips appeals from a judgment of the United States
District Court for the District of Connecticut (Bryant, J.) granting summary judgment to the
defendant on Phillips’s medical malpractice claim. Phillips, as the administrator of Karen Cato’s
estate, sued Generations Family Health Center (“Generations”) in Connecticut state court for
failing to timely diagnose the colon cancer that caused Ms. Cato’s death. As this Court discussed
at length in a previous opinion, Phillips v. Generations Family Health Center, Generations
“receives federal funding under the Public Health Service Act and has been ‘deemed’ a federal
employee by the Department of Health and Human Services (‘HHS’).” 723 F.3d 144, 145 (2d
Cir. 2013); see 42 U.S.C. § 233(g)-(n). After the case was removed to federal court, the district
court concluded that Phillips had failed to file a timely claim with HHS as required by the
Federal Tort Claims Act (“FTCA”) and dismissed the case. See Phillips v. Generations Family
Health Ctr., No. 3:11-cv-1752 (VLB), 2012 WL 3580532, at *8, *11 (D. Conn. Aug. 17, 2012).
On appeal, this Court vacated the district court’s judgment and remanded for further
consideration of whether equitable tolling should be applied. Phillips, 723 F.3d at 155-56.
Assuming without deciding that equitable tolling was available,1 we found that the district court
1
While this case was pending before the district court on remand, the United States Supreme
Court issued its decision in United States v. Wong, 135 S. Ct. 1625, 1638 (2015), holding that
equitable tolling is available in FTCA cases. Accordingly, the government withdrew its
argument in this case that tolling is not available.
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had not considered whether Phillips’s counsel “had reason to know that they should have
investigated Generations’s federal status.” Id. at 149, 155 n.8. We advised the district court to
“consider all of the relevant facts and circumstances—including whether the plaintiff should
have known to investigate the issue—to determine, utilizing its own discretion, whether the
plaintiff and lawyer were sufficiently diligent.” Id. at 153.
On remand, the government renewed its motion to dismiss. The district court converted
the motion into one for summary judgment with the parties’ consent and granted it without oral
argument, again dismissing the case without leave to file an administrative claim. Phillips now
appeals, arguing that the district court erred in determining that his counsel should have known
that Generations was a deemed federal employee, both because his attorneys engaged in
reasonable diligence and because the government made no effort to publicize the fact that private
health centers can be deemed federal employees.
Although we continue to find it troubling that the government has not publicized
resources for determining whether a given healthcare center is a deemed federal employee, thus
subjecting litigants to the “trap” this Court has discussed in several previous opinions, we affirm.
See, e.g., id. at 155; Valdez ex rel. Donely v. United States, 518 F.3d 173, 183 (2d Cir. 2008)
(“The number of cases in which the United States has sought to take advantage of this trap
suggests that it is aware of the consequences of its failure to disclose the material facts of federal
employment by doctors who might reasonably be viewed as private practitioners.”); Celestine v.
Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 84 (2d Cir. 2005) (characterizing the gap
between state and federal statutes of limitations as leading to potentially “unjust” results).
As we discussed in our previous opinion in this case, “equitable tolling is ‘applicable
only in rare and exceptional circumstances.’” Phillips, 723 F.3d at 150 (quoting A.Q.C. ex rel.
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Castillo v. United States, 656 F.3d 135, 144 (2d Cir. 2011)). “[A] litigant seeking equitable
tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.” A.Q.C., 656 F.3d at
144 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “The plaintiff must also show that
his lawyers were reasonably diligent in determining ‘the appropriate parties to sue, and what, if
any, restrictions on the time and forum for bringing such a claim might exist.’” Phillips, 723 F.3d
at 150 (quoting A.Q.C., 656 F.3d at 145).
In rejecting equitable tolling in a case involving similar facts in A.Q.C., a panel of this
Court emphasized that the plaintiff “was represented by counsel who had previously confronted
factually similar circumstances and therefore had specific notice of the fact that some ostensibly
private doctors are deemed federal employees for purposes of medical malpractice claims under
the FTCA.” 656 F.3d at 146. In our earlier opinion in this case, we observed that “[h]ere, unlike
in A.Q.C., the parties presented no evidence that Phillips’s law firm had any experience with
situations in which seemingly private health providers turned out to be deemed federal
employees.” Phillips, 723 F.3d at 153. Following our remand, however, the government
identified a case in which an attorney from Phillips’s firm, Pegalis & Erickson, LLC, sued a
deemed federal employee in state court before the case was removed to federal court. See Sakif v.
Bronx Lebanon Hosp. Ctr., No. 05-cv-7229 (S.D.N.Y.).
Although Phillips’s attorney points out that he was not the lawyer representing the
plaintiff in that case, our previous opinion stressed the experience of the law firm as a whole, not
the particular attorney. Phillips, 723 F.3d at 153. Similarly, the A.Q.C. Court referred to the
plaintiff’s law firm, not her individual attorney at the firm. See A.Q.C., 656 F.3d at 145
(“Fitzgerald & Fitzgerald, which advertises itself as ‘a top firm in the medical malpractice field,’
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had previous experience with this very issue. . . . Moreover, no extraordinary obstacle prevented
the Firm from identifying [the health center’s] federal status (and therefore the particular
requirements for filing suit under the FTCA) in a timely way.” (emphasis added)). Given the
clear pronouncements in A.Q.C. about the importance of the firm’s previous experiences, we are
bound by precedent to deny equitable tolling here. The issue is not whether one lawyer’s
knowledge should automatically, as a matter of law, be imputed to everyone in her firm; rather,
the issue is whether the firm’s previous experience with this same problem is evidence that the
firm should have been aware of the possibility that a healthcare provider could be a deemed
federal employee, and, thus, should have checked the appropriate public resources. As the Court
stated in A.Q.C.:
It is hard to understand why any lawyer—let alone a lawyer at a firm specializing
in medical malpractice with specific prior acquaintance with this issue—would
not investigate the federal nature of potential defendants as part of standard due
diligence in every medical malpractice case. Having neglected to take that simple
step, the Firm cannot now argue that it diligently pursued this claim on A.Q.C.’s
behalf.
A.Q.C., 656 F.3d at 145 (emphasis added).
Moreover, Phillips’s counsel could have discovered Generations’s deemed status by
performing a simple search through Westlaw, as a previous case in the District of Connecticut
explicitly discussed Generations’s status. See Montanez ex rel. Rosario v. Hartford Healthcare
Corp., No. 3:03-cv-1202 (GLG), 2003 WL 22389355, at *1 (D. Conn. Oct. 17, 2003)
(“Generations receives federal funding from the United States Department of Health and Human
Services . . . and . . . at all times relevant hereto, HHS has deemed Generations to be an
employee of the United States Public Health Service . . . for purposes of the FTCA. . . . Under
such circumstances, the FTCA covers claims against Generations, and the United States stands in
the shoes of Generations with respect to those claims.” (internal citations omitted)). Accordingly,
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this is not a case where no publicly available information would have revealed Generations’s
status or triggered a reason to inquire. Cf. Santos ex rel. Beato v. United States, 559 F.3d 189,
203 (3d Cir. 2009) (applying equitable tolling where “the Government [had] not identified . . .
any publicly available sources of information from which [the plaintiff] could have learned this
critical fact [of the health center’s deemed status] or, even if the information had been available,
what circumstances should have led her to inquire into [the health center’s] federal status for
purposes of the FTCA”).
A legal malpractice claim may be a possible recourse for a plaintiff caught in the deemed
federal employee “trap.” Cf. Arteaga v. United States, 711 F.3d 828, 834-35 (7th Cir. 2013)
(“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 . . . and if a member of that bar is not aware and misleads a client . . ., the lawyer
may be liable for legal malpractice but the government can still invoke the statute of
limitations.”). We take no position as to whether such a suit would be successful here.
Because we find that the plaintiff is not entitled to equitable tolling, we AFFIRM.2
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
2
Nonetheless, we note our concern that the district court contradicted the conclusions of this
Court following remand. In our previous opinion in this case, this Court determined that Phillips
and his family exercised reasonable diligence in pursuing their claim. See Phillips, 723 F.3d at
156 n.9. We respectfully note that the district court overstepped its authority in disagreeing with
this Court and substituting its own judgment.
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