M.J. Ex Rel. Jarvis v. Georgetown University Medical Center , 962 F. Supp. 2d 3 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
M.J., a minor, by and through
Bianca Jarvis, his parent and
natural guardian,
Plaintiffs,
Civil Action No. 13-283 (GK)
v.
Georgetown University Medical
Center, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Bianca Jarvis ("Jarvis" or "Plaintiff") brings
this medical malpractice action, on behalf of her minor son,
M. J.' against the Georgetown University Medical Center,
Georgetown University Hospital, Lori A. Picco, M.D., and Phyllis
M. Rattey, R.N. (collectively, the "Georgetown Defendants"), and
the United States of America (the "Government").
This matter is before the Court on the Government's Motion
Upon consideration or-tile HO-Llon,
Opposition [Dkt. No. 12], and Reply [Dkt. No. 16], the entire
record herein, and for the reasons stated below, the
Government's Motion is granted.
I. BACKGROUND 1
A. Factual Background
On November 1, 1998, Jarvis was admitted to the Georgetown
University Hospital twenty-five weeks pregnant with complaints
of "abdominal spasms and spontaneous rupture of membranes."
Compl. 28
U.S.C. § 2679 [Dkt. No. 1-2], and the exhibits and declarations
appended to the parties' briefs. [Dkt. Nos. 5-2, 12-1].
2
Bradycardia is a slow heart rate. See STEDMAN'S MEDICAL DICTIONARY
["STEDMAN's"] 54300 (27th ed. 2000). Less than 100 beats per
minute is considered to be bradycardia in a fetus. Id.-2-
M.J. was born on November 7, 1998, at 12:27 a.m. Upon
deli very, he "was blue, with no respiratory effort or heart
rate[,]" and had "extensive bruising on his head, neck and
chest." Compl. `` 106-07. Following delivery, M.J. was
diagnosed with "perinatal asphyxia, respiratory distress
syndrome, and extreme prematurity," and was admitted to the
neonatal intensive care unit, where he remained for sixteen
weeks. Compl. `` 108-110. 3 M. J. now suffers from permanent
brain damage, orthopedic injuries, global developmental delay,
and other complications, which Plaintiff attributes to the
timing and method of M. J. 's deli very, specifically Defendants'
decision to deliver M.J. vaginally rather than by cesarean
section. See Compl. `` 112, 117, 119.
B. Procedural Background
On January 2, 2013, more than 14 years after M.J.'s birth,
Jarvis filed this medical malpractice action in District of
Columbia Superior Court. The case was initially brought against
the Georgetown Defendants and Dr. Christian Macedonia, one of
the doctors involved in M.J.'s delivery. On March 4, 2013, the
Government substituted itself as a party defendant on behalf of
3
Asphyxia is oxygen deprivation resulting from the "[i]mpaired
or absent exchange of oxygen and carbon dioxide on a ventilatory
basis." See STEDMAN'S at 34 810.
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Dr. Macedonia, and removed the case to this Court pursuant to
the Federal Employees Liability Reform and Tort Compensation Act
of 1988 (the "Westfall Act"), 28 U.S.C. § 2679. According to
the removal papers, at the time of M.J.'s delivery, Dr.
Macedonia was a federal employee, serving as a Major in the
United States Army and completing a fellowship at Georgetown
University Hospital. Plaintiff's claim against Dr. Macedonia is
therefore deemed to be an action against the United States under
the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). See
28 u.s.c. § 2679(d). Dr. Macedonia was dismissed as a defendant
on April 10, 2013.
On March 20, 2013, the Government moved to dismiss
Plaintiff's FTCA claim pursuant to Fed. R. Civ. P. 12 (b) (1) for
lack of subject matter jurisdiction [ Dkt. No. 5] . On April 3,
2013, Plaintiff filed her Opposition [Dkt. No. 12], and on May
15, 2013, the Government filed a Reply [Dkt. No. 16].
I I . STANDARD OF REVIEW
Under Rule 12(b) (1), the plaintiff bears the burden of
proving by a preponderance of the evidence that the Court has
subject matter jurisdiction. See Shuler v. United States, 531
F.3d 930, 932 (D.C. Cir. 2008). In deciding whether to grant a
motion to dismiss for lack of jurisdiction, the court must
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"accept all of the factual allegations in [the] complaint as
true [.]" Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) (citing United
States v. Gaubert, 499 U.S. 315, 327 (1991)) (quotation marks
omitted) . The Court may also consider matters outside the
pleadings, and it may rest its decision on its own resolution of
disputed facts. See Herbert v. Nat' 1 Acad. of Sciences, 974
F.2d 192, 197 (D.C. Cir. 1992). 4
III. ANALYSIS
A. The Federal Tort Claims Act
It is basic hornbook law that the United States, as
sovereign, is immune from suit unless it consents to be sued.
United States v. Mitchell, 445 U.S. 535, 538 (1980). By
enacting the FTCA, Congress partially waived the Government's
sovereign immunity for claims of "personal injury caused
by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
4
The parties refer to the difference between a "factual
challenge" and a "facial challenge" to subject matter
jurisdiction. See Gov' t' s Mot. at 2; Pl.'s Opp' n at 3. While
the Court does not find explicit support for this dichotomy in
D.C. Circuit case law, the distinction between the two types of
motions is not material to resolving this Motion. The important
point is that, while the Court may consider materials outside of
the pleadings, it still accepts the factual allegations in the
Complaint as true. See Jerome Stevens Pharmaceuticals, Inc.,
402 F.3d at 1253-54.
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employment." 28 u.s.c. § 1346 (b). However, Congress
conditioned such waiver on the requirement that a plaintiff
present her claim "in writing to the appropriate Federal agency
within two years after such claim accrues," and thereafter file
her action in court within six months of agency's final denial
of her claim. 28 U.S.C. § 2401(b).
Under the Westfall Act, the FTCA is the exclusive mechanism
by which a plaintiff may seek damages for any "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.
§ 2679(b) (1). Where, as in this case, a plaintiff has
originally sued the employee in his or her individual capacity,
the Westfall Act deems the action to be one against the
Government under the FTCA, and requires the Government to be
substituted as party defendant in the employee's place. See 28
u.s.c. § 2679(d) (2).
Because substitution of the United States as a party might
occur long after the FTCA's two-year limitations period has
expired, the Westfall Act contains a "savings provision" for
actions initially brought against an individual Government
employee, subsequently converted into an FTCA claim against the
Government, and thereafter dismissed for failure to file an
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administrative claim. See Mittleman v. United States, 104 F.3d
410, 413 (D.C. Cir. 1997) (citing 28 U.S.C. § 2679(d) (5) (A)).
In such cases, the savings clause provides a 60-day grace period
for the plaintiff to file her claim with the appropriate agency,
but only if such "claim would have been timely had it been filed
on the date the underlying civil action was commenced [.]" 28
u.s.c. § 2679(d) (5). Otherwise, a claim not timely presented to
the appropriate federal agency is "forever barred." 28 U.S.C. §
2401(b); Mittleman, 104 F.3d at 413.
B. Plaintiff's Claim Is Time-Barred
It is undisputed that .Jarvis did not file an administrative
claim before commencing this case. See Def.'s Mem. at 4 & Ex. 2
(Decl. of Major Linda A. Chapman); Pl.'s Opp'n at 5. The
parties dispute, however, whether she may exhaust her
administrative remedies now that she is aware of Dr. Macedonia's
previous status as a federal employee. According to the
Government, Plaintiff's claim is barred by the FTCA' s two-year
statute of limitations. Plaintiff counters that her claim is
not time-barred because it did not accrue until this year, and
in the alternative, that equitable tolling should apply to
permit her case to proceed.
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1. M.J.'s Claim Accrued in 1998
Plaintiff first argues that M. J. 's claim did not accrue
until March 2013, when she learned of Dr. Macedonia's status as
a Government employee. Pl.'s Opp' n at 6-7. The Government
contends that M.J.'s claim accrued on M.J.'s date of birth, when
Jarvis learned of the injuries she now attributes to the
Government. Reply at 7-11.
Accrual of a claim under the FTCA is governed by federal
law. See Sexton v. United States, 832 F.2d 629, 633 n.4 (D.C.
Cir. 1987). The seminal case on FTCA medical malpractice claims
is Kubrick v. United States, 444 U.S. 111 (1979). In Kubrick,
the Supreme Court held that a medical malpractice claim accrues
when the plaintiff knows ~the critical facts that [s]he has been
hurt and who has inflicted the injury," even if she does not
know that the injury was ~negligently inflicted." Kubrick, 444
U.S. at 122, 123. The Court reasoned that:
A plaintiff . armed with the facts about the harm
done to him, can protect himself by seeking advice in
the medical and legal community. To excuse him from
promptly doing so by postponing the accrual of his
claim would undermine the purpose of the limitations
statute, which is to require the reasonably diligent
presentation of tort claims against the Government.
Id. at 123.
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The D.C. Circuit has construed Kubrick to stand for the
proposition that "a plaintiff's understanding of the basic
nature of the [allegedly improper] treatment should suffice to
begin the statute running." Sexton, 832 F.2d at 633. Stated
differently, a medical malpractice claim accrues when the
plaintiff possesses sufficient "historical facts associated with
the injury" to permit her to "undertake a reasonably diligent
investigation to determine whether a cause of action may lie."
Id. at 633-34; see also McCullough v. United States, 607 F. 3d
1355, 1359 (11th Cir. 2010) (a medical malpractice claim accrues
when plaintiff "is, or in the exercise of reasonable diligence
should be, aware of both [her] injury and its connection with
some act of the defendant") (citation omitted).
Applying these principles to the instant case, it is
undisputed that Jarvis knew of M.J.'s injuries on the day he was
born. According to the Complaint, newborn M. J. was "blue with
--------=-n'--'o'-----_r__ce_sRiratory effort or heart rate," and had "ext-ensive
bruising on his head, neck and chest." Comp l. en en 1 0 6, 107 .
These obvious physical symptoms, and the doctors' related
diagnosis of perinatal asphyxia and respiratory distress
syndrome, put Jarvis on notice that M.J. had suffered an injury
related to oxygen deprivation, even if she did not then know its
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full extent or its future impact on M. J.' s development. See
Wallace v. Kato, 549 U.S. 384, 391 (2007) ("The cause of action
accrues even though the full extent of the injury is not then
known or predictable.") (citations omitted).
Jarvis also possessed sufficient information to prompt a
"reasonably diligent" inquiry into whether Defendants' medical
care - specifically the decision to proceed by vaginal delivery
rather than cesarean section caused M. J. 's condition. See
Sexton, 832 F. 2d at 633-34. It is uncontested that Dr. Picco
initially informed Jarvis that M.J. would be delivered by
cesarean section, before the doctors changed their minds and
opted for vaginal delivery. Compl. ~ 96; Pl.'s Opp'n, Ex. A at
Consent for Surgery, Anesthetics, and Other Medical Services and
Operative Report. This fact, in conjunction with M.J.'s
conspicuous injuries, gave Jarvis a reasonable basis to question
whether the doctors' choice was proper, and to seek further
_______
l_egal and medical advice on that question.
Plaintiff contends in her Opposition that her claim did not
accrue in 1998 because Defendants told her that M.J.'s condition
was caused by prematurity. Pl.'s Opp' n at 6. However, the
Complaint itself alleges that "M.J. was diagnosed with perinatal
asphyxia, respiratory distress syndrome, and extreme
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prematurity." Compl. CJI 110 (emphasis added). Under Sexton, the
fact that an injury has multiple causes does not negate a
plaintiff's duty to make a reasonable inquiry into all other
potential causes once she is aware of the relevant facts
underlying that cause. See Sexton, 8 32 F. 2d at 633-34
(plaintiffs' belief that death resulted from leukemia rather
than negligence did not postpone accrual where plaintiff
understood "basic nature of the [allegedly negligent]
treatment").
Plaintiff also argues that her FTCA claim could not accrue
until she discovered the Government's involvement in M.J.'s
injury. Pl.'s Opp'n at 6-7. The D.C. Circuit has not addressed
such an argument, but other circuits have rejected it.
e.g., Ramos v. Dep't of Health and Human Servs., 429 F. App'x
947, 951 (11th Cir. 2011) ("That [Plaintiff] did not learn until
later that the government was the proper defendant does not
alter [accrual] analysis."); Skwira v. United States, 344 F.3d
64, (1st Cir. 2003) ("In the medical malpractice context,
knowledge of the legal status of the physician as a federal
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employee is not required for claim accrual.") (emphasis in
original) (citing cases) . 5
Further, by including the savings clause in the Westfall
Act so as to give additional time for exhaustion to plaintiffs
whose state court actions would otherwise be timely, Congress
already provided for circumstances in which a plaintiff is
initially unaware that the Government is the proper defendant.
See 28 U.S.C. § 2679(d) (5) (A) . 6 There would be little need for
this clause if Congress also intended a plaintiff's claim not to
accrue until she knew of the Government's role in her case.
Therefore, M. J. 's claim accrued in 1998 regardless of whether
5
Plaintiff cites Valdez v. United States, 518 F.3d 173 (2d Cir.
2008) and Danzan v. United States, 762 F.2d 56 (7th Cir. 1985),
but neither endorse the rule she urges. In Valdez, the Second
Circuit merely observed that equitable tolling might apply where
a plaintiff had no reason to know her medical provider was a
government entity. Valdez, 518 F.3d at 178 n.2 & 182-85. In
Danzan, the Seventh Circuit held that when an injury has a
natural cause (in that case, cancer), and an accelerating cause
-----~ tt-r±-butab-l-e-----to----the-@overnment--(-ne-g--1--±-gen L Lre-atm-ent-)---,-----t-he-PTeA: · - - - - -
claim does not accrue until a plaintiff has reason to know of
the Government-related cause. Danzan, 762 F.2d at 59-60.
Neither Valdez nor Danzan held that a plaintiff's claim does not
accrue until she knows that the employee alleged to have caused
her injury is a government employee.
6
The savings clause does not apply in this case because Jarvis
did not file her state court action until January 2013, more
than fourteen years after the statute of limitations expired.
28 U.S.C. § 2679(d) (5) (A).
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Jarvis had any reason to suspect that Dr. Macedonia was a
federal employee.
2. Equitable Tolling Does Not Apply
Plaintiff also argues that even if M. J.' s claim accrued
earlier, the statute of limitations should be equitably tolled
because she·had no reason to suspect Dr. Macedonia was a federal
employee, and because her claims were otherwise timely under
District of Columbia law. 7 The Government counters that the
FTCA's limitations period is a prerequisite to the Court's
subject matter jurisdiction, and therefore, is not subject to
equitable tolling. 8 The Court need not reach that issue,
however, because, as the Government also points out, Plaintiff
has not made a convincing case for equitable tolling. Reply at
4-7.
Equitable tolling, where it applies, "permits a plaintiff
to avoid the bar of the limitations period if .despite all due
diligence she is unable to obtain vi tal
----------------
information bearing on
7
Under District of Columbia law, the three year statute of
limitations for medical malpractice claims of minors is tolled
until their eighteenth birthday. D.C. Code §§ 12-301, 12-
302 (a) (1).
8
Notwithstanding this implicit dispute about whether the FTCA's
limitation period is "jurisdictional," the parties agree that
Rule 12(b) (1) supplies the applicable standard of review for all
issues raised in this Motion. See Def.' s Mem. at 2-3; Pl.'s
Opp'n at 3-4.
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the existence of her claim." Smith-Haynie v. Dist. of Columbia,
155 F.3d 575, 579 (D.C. Cir. 1998) (citing Cada v. Baxter
Healthcare Corp., 920 F.2d 44 6, 451 (7th Cir. 1990)).
"Generally, a litigant seeking equitable tolling bears the
burden of establishing two elements: ( 1) that [ s] he has been
pursuing [her] rights diligently, and ( 2) that some
extraordinary circumstance stood in [her] way." Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89, 96 (1990)).
In Norman v. United States, 467 F.3d 773, 775-76 (D.C. Cir.
2006), our Court of Appeals addressed equitable tolling in
circumstances nearly identical to those presented here. The
plaintiff, Norman, was hit by a rental car and filed a claim
with the driver's insurance provider shortly thereafter.
However, the insurance company did not inform him until two and
a half years later that the driver was a federal employee acting
within the scope of his employment. Norman subsequently filed
his case within the District of Columbia's three-year
limitations period for personal injury actions, but outside the
FTCA's two-year limitations period. The District Court rejected
Norman's request for equitable tolling and dismissed the case as
time-barred. On appeal, the Court of Appeals declined to
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address whether the FTCA limitations period may ever be
equitably tolled because it concluded that, in any event, Norman
"failed to meet the due diligence requirement for equitable
tolling." Id. at 776.
The same conclusion holds here. Like the plaintiff in
Norman, Jarvis has not identified "any efforts prior to the
expiration of the FTCA' s two-year statute of limitations-much
less reasonably diligent efforts-to discover [Dr. Macedonia's]
employer." Id. Her failure to do so is not excused simply
because M.J.'s claim is otherwise timely under District of
Columbia law. As the D. C. Circuit emphasized, "[i] f that were
enough for equitable tolling the FTCA's statute of
limitations would have no bite [,]" because plaintiffs would be
able to circumvent the statute by merely filing claims in a
jurisdiction with a longer limitations period. Id.In addition, the due diligence requirement for equitable
tolling is not relaxed merely because Jarvis had no basis during
the fourteen years that elapsed since the injury occurred to
know that Dr. Macedonia worked for the Government. As the Court
of Appeals observed, "if prejudice were enough, then equitable
tolling would no longer be restricted to 'extraordinary and
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carefully circumscribed circumstances.'" Id. at 777 (citing
Smith-Haynie, 155 F.3d at 580) . 9
Plaintiff attempts to distinguish Norman by arguing that
the plaintiff in that case had a greater reason to assume the
tort feasor was a federal employee because "when dealing with an
automobile accident in the District of Columbia, there would be
a high likelihood that the driver was going about his business
for any one of the numerous government agencies in the area."
Pl.'s Opp'n at 11. The D.C. Circuit emphatically rejected such
an argument, observing that "[w] e think it entirely unworkable
to calibrate the required level of due diligence to the number
of federal employees living in the region where the accident
occurred." Norman, 467 F. 3d at 778. Instead, "due diligence
must have the same meaning everywhere." Id. Here, as in
Norman, Plaintiff's "claim for equitable tolling fails because
at no time during the FTCA's two-year statute of limitations did
9
In fact, in Norman, the D.C. Circuit concluded that equitable
tolling would not even apply if the insurance carrier had
"deliberately withheld information about [the tortfeasor's]
employment status" because Norman sought "equitable tolling
against the government, not against [the insurance company]."
Norman, 467 F.3d at 777 (emphasis added)
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[s]he make any e~fort - diligent or otherwise - to identify [Dr.
Macedonia's] employer." Id. 10
"It goes without saying that statutes of limitations often
make it impossible to enforce what were otherwise perfectly
valid claims." Kubrick, 444 U.S. at 125. As the Seventh
Circuit observed in Sexton,
any statute of limitations that puts inquiry burdens
on a plaintiff, as this one clearly does,
entails a degree of ghoulish behavior. Patients or
survivors, whose instinct may well be to shut off from
their minds the grim experience through which they
have passed, are required instead to follow up on
their leads. For persons of any sensitivity this must
be a difficult or even repugnant process. Yet, to
protect defendants from stale claims, legislatures put
potential plaintiffs to the hard choice of proceeding
with such inquiries or risking loss of possible
claims.
832 F.2d at 636 (citations omitted).
The FTCA bars claimants from bringing suit in federal court
unless they have presented their claim to the Government within
two years of the claim's accrual. McNeil v. United States, 508
u.s. 106, 113 (1993). Jarvis never filed any administrative
10
The Government argues that Plaintiff could have quickly
discovered Dr. Macedonia's status as a federal employee, and
cites a number of public websites listing Dr. Macedonia's
affiliation with the United States Army. See Gov't's Reply at 6
n. 2. Given that this information was presented for the first
time in the Government's Reply, and Plaintiff did not have the
opportunity to respond to it, the Court does not rely on it.
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claim, and is now time barred from doing so. Accordingly,
Plaintiff's claim against the Government shall be dismissed for
lack of subject matter jurisdiction.
C. The Case Shall Be Remanded to Superior Court
The claim against Dr. Macedonia was the sole basis on which
the case was removed to this Court. [Dkt. No. 1]. Having
concluded that the Court lacks jurisdiction over such claim, the
Court shall remand the case to Superior Court.
IV. CONCLUSION
For the foregoing reasons, the Government's Motion is
granted, and the case shall be remanded to Superior Court. An
Order shall accompany this Memorandum Opinion. 11
August 22, 2013
Copies to: attorneys on record via ECF
11
Plaintiff requests that if the Court determines that equitable
tolling applies but still dismisses the case due to her failure
to exhaust her administrative remedies, the Court should dismiss
the case without prejudice. Pl.'s Opp' n at 12. Because the
Court determines that equitable tolling does not apply and that
Plaintiff's claims are untimely, it shall dismiss the case with
prejudice.
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