284 F.3d 281 (1st Cir. 2002), 00-2352, Gonzalez v. United States

Docket Nº:00-2352
Citation:284 F.3d 281
Party Name:CATHERINE GONZALEZ, INDIVIDUALLY AND AS PARENT GUARDIAN AND NEXT FRIEND OF THE MINOR CHILD KIANA RIOS, Plaintiff, Appellant, v. UNITED STATES OF AMERICA, Defendant, Appellee. LAWRENCE GENERAL HOSPITAL, SWADESH MULLICK, MICHAEL ROBBINS, LAUREL A. RUZICKA, STEVEN D. STOVITZ, BLAIRE ROBERTS, and ROSAMUNDE EBACHER, Defendants.
Case Date:April 01, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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284 F.3d 281 (1st Cir. 2002)

CATHERINE GONZALEZ, INDIVIDUALLY AND AS PARENT GUARDIAN AND NEXT FRIEND OF THE

MINOR CHILD KIANA RIOS, Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA, Defendant, Appellee.

LAWRENCE GENERAL HOSPITAL, SWADESH MULLICK, MICHAEL ROBBINS, LAUREL A. RUZICKA, STEVEN D. STOVITZ, BLAIRE ROBERTS, and ROSAMUNDE EBACHER, Defendants.

No. 00-2352

United States Court of Appeals, First Circuit

April 1, 2002

Amended April 26, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Page 282

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Page 284

Sidney Gorovitz, with whom Perlman, Gorovitz & Borten was on brief for appellant.

Gina Y. Walcott-Torres, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

Before Boudin, Chief Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

BOWNES, Senior Circuit Judge.

This is a medical malpractice case brought by plaintiff-appellant, Catherine Gonzalez, individually and on behalf of her daughter, Kiana Rios, who was born with various health problems on October 27, 1995. The district court dismissed the suit against the defendant-appellee United States because the plaintiff failed to file a timely administrative claim as required pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401(b).

The plaintiff presents three arguments on appeal. First, she argues that under the discovery rule, she timely filed her claim because her cause of action accrued in May 1998, not February or March 1996 at the latest, as the district court had determined. 1 Second, the plaintiff contends that the statute of limitations should be equitably tolled because she was unaware that the defendants were for purposes of the FTCA federal employees, 42 U.S.C. § 223(a), (g), necessitating her compliance with the two-year statute of limitations under federal law. Finally, she argues the doctrine of fraudulent concealment tolls the statute of limitations because she was unable to obtain important medical documents and information until after the litigation began. We reject each of these contentions and affirm the district court.

I. BACKGROUND

A. Facts

In early 1995, the plaintiff became pregnant and sought pre-natal care at Greater Page 285

Lawrence Family Health Center ("GLFHC") in Lawrence, Massachusetts. She was assigned to nurse practitioner and midwife, Rosamunde Ebacher, C.N.M. ("Ebacher"), who informed her that delivery would take place at Lawrence General Hospital ("LGH"). At approximately 11:00 a.m. on October 26, 1995, the plaintiff arrived at LGH for delivery. Throughout the day, resident physicians Laurel A. Ruzicka, M.D. ("Ruzicka"), and Steven D. Stovitz, M.D. ("Stovitz") and the attending physician, Blaire Roberts, M.D. ("Roberts"), monitored the plaintiff in the Obstetric Department. These doctors were all employees of GLFHC, although the plaintiff was not aware of this at the time of her admission. During labor and delivery, the plaintiff maintained an increased temperature, for which she was given an antibiotic; expelled a greenish fluid and thick material from her vagina; and experienced heart rate decelerations, for which she received oxygen. At 5:47 a.m. on October 27, approximately eighteen hours after her admission to the hospital and after a long and difficult delivery, the plaintiff gave birth to Kiana Rios. Ruzicka and Roberts delivered the baby, who was flaccid and blue and required ventilation for three minutes before she could breathe on her own. Later that day, the baby exhibited stiffening of her upper extremities. Approximately two hours after delivery, the plaintiff learned Kiana was suffering from seizures. Early the next morning (October 28, 1995), Kiana was transported to Children's Hospital Medical Center ("Children's Hospital") with a diagnosis of seizures, secondary to perinatal asphyxia. Prior to Kiana's transfer, the plaintiff saw her three times. During the visits, she observed that the baby was screaming, shaking, pale, wearing an oxygen hood, and in an incubator. Also prior to the transfer, the plaintiff signed three consent forms, which indicated she consented generally to the transfer, understood that the baby was being transferred because she was in serious condition and needed emergency treatment, and that the plaintiff had received a doctor's explanation that the baby might be experiencing seizures and stiffening. The baby remained at Children's Hospital until November 6, 1995.

On December 15, 1995, the plaintiff attended her first post-partum appointment with Ebacher. Here, the plaintiff recounted the baby's medical history and asked Ebacher why Kiana was sick. Ebacher replied that she did not know why and that the baby was stressed. The plaintiff also alleges that she asked this question not only of the four medical providers present on the day of Kiana's birth and named in the original suit, but also of Kiana's subsequent treating physicians. 2 None of them could advise her as to what had occurred. After her birth, the baby was hospitalized on numerous occasions and also developed sight and hearing defects. During Kiana's first or second admission to Children's Hospital, the plaintiff was informed that the baby suffered from hypoxic-ischemic encephalopathy, or lack of oxygen to the brain. The plaintiff also received an October 14, 1996 report from Children's Hospital, detailing the baby's birth and subsequent medical history.

In February or March 1996 - approximately four months after Kiana's birth - the plaintiff consulted an attorney because, according to her deposition testimony, "I wanted some answers. . . . I wanted to know what happened to my daughter Page 286

because I kept asking the doctors and no one ever told me." In the fall of 1996, prior to Kiana's first birthday, the plaintiff terminated her attorney-client relationship with her first attorney and retained her present counsel. The plaintiff testified in her deposition that she was aware that her present counsel retained a medical expert "to see if anything further went on than genetics or just a will of God." In May 1998, the plaintiff received an expert's written report, which linked Kiana's injuries to the plaintiff's labor and delivery at LGH. Approximately five months later - on October 23, 1998 - the plaintiff filed this suit.

More than six months later, on April 20, 1999, the plaintiff's attorney requested Kiana's fetal heart monitoring strips from Lawrence General Hospital. 3 Correspondence about these strips continued until May 19, 1999. Although the hospital had not provided the strips with the other materials it had previously provided to the plaintiff, it sent her the strips by the end of May 1999. These strips were also referenced in Kiana's medical records, which had been in the plaintiff's possession as of at least February or March 1996.

At all relevant times, the Greater Lawrence Family Health Center, where Ruzicka, Stovitz, Roberts, and Ebacher worked, was a federally supported health center, pursuant to the Federally Supported Health Centers Assistance Act of 1992 (Pub. L. 102-501, 106 Stat. 1992) and 42 U.S.C. § 233(a), and all its employees were deemed federal employees for the purposes of the FTCA. Neither the plaintiff nor her attorneys ever inquired as to whether Ruzicka, Stovitz, Roberts, or Ebacher were federal employees, nor did the medical practitioners identify themselves as such to the plaintiff.

B. Procedural History

On October 23, 1998, the plaintiff filed a medical malpractice suit against, inter alia, Ruzicka, Stovitz, Roberts, and Ebacher in Essex Superior Court in Massachusetts. 4 In early April 1999, the United States, acting on behalf of these defendants, removed the case to the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. § 2679(d)(2) (the "Westfall Act"). 5 On May 7, 1999, the United States filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) for the plaintiff's failure to exhaust administrative remedies pursuant to the FTCA, 28 U.S.C. § § 1346(b), 1402(b), 2401(b), and 2671, et seq. The plaintiff filed her opposition to the motion, along with affidavits of the plaintiff and Attorney Peter J. Kajko ("Kajko"), 6 on July 6, 1999, and the United Page 287

States filed a reply brief on August 6, 1999.

On December 14, 1999, the district court heard oral argument on the motion to dismiss and ordered the parties to conduct limited discovery on the issue of what the plaintiff knew or should have known of the...

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