Valdez ex rel. Donely v. U.S.

Citation415 F.Supp.2d 345
Decision Date03 February 2006
Docket NumberNo. 05 CIV. 4842(CM).,05 CIV. 4842(CM).
PartiesElon Emani VALDEZ, an infant by her Mother and Natural Guardian, Tiffany Donely, and Tiffany Donely, Individually Plaintiffs, v. THE UNITED STATES of America, Defendant.
CourtU.S. District Court — Southern District of New York

Charles Neuville Rock, Rock & Rosmarin, LLP, White Plains, NY, for Plaintiffs.

Heather Kirsten McShain, U.S. Attorney's Office, SDNY, New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

MCMAHON, District Judge.

On December 13, 2000, plaintiff Tiffany Donely was admitted to St. Luke's— Roosevelt Hospital ("St.Luke's"), where she delivered her daughter, plaintiff Elon Emani Valdez, by emergency cesarean section performed by Doctor Christina Hye-Kyong Kong ("Dr.Kong"). Prior to delivery, Donely received prenatal care at the William F. Ryan Community Health Center ("Ryan Center"), of which Dr. Kong is an employee.

Hours after the delivery, Elon was diagnosed with respiratory distress secondary to meconium aspiration1 and transferred to New York Presbyterian Hospital. Donely both consented to this transfer and "appear[ed] to understand the reasons for the transfer." (See McShain Decl. Ex. J; Id. Ex. F at 2.)

On January 18, 2001, Elon returned to St. Luke's Neonatal Intensive Care Unit. On January 26, 2001, Donely was notified that her daughter suffered from seizures and bleeding of the brain, causing the brain to atrophy. Elon remained hospitalized for over three months following her birth. She was on a ventilator for approximately two and one-half of those months. Elon was finally discharged from the hospital on March 10, 2001. At the time of her discharge, she had swallowing dysfunction and needed a feeding tube. She was being treated for seizure disorder with Phenobarbital. And she had been diagnosed with brain atrophy.

On February 12, 2002, Donely retained Michael Eidman, Esq., to bring an action against those involved with Elon's birth.

Pursuant to the Public Health Service Act, as amended by the Federally Supported Health Centers Assistance Act of 1995, 42 U.S.C. § 233(g)-(n) (the Act), the employees of any federally supported health center are deemed to be employees of the United States for purposes of bringing civil actions against them for damages resulting from the performance of medical, surgical, dental or related functions. Since a plaintiff must comply with the procedures outlined in the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), prior to bringing an action against the Government due to the alleged negligence of a covered employee, it is incumbent on counsel to ascertain whether a facility is covered by the Act. Among those requirements is an administrative exhaustion requirement, which contains a two year statute of limitations (that is, the administrative claim must be filed with the Government no later than two years after the date of the alleged tort). See 28 U.S.C. § 2401(b). Eidman was obviously aware of these requirements, because he made efforts to ascertain whether the Ryan Center was a covered facility. He called the Ryan Center and spoke to an unidentified employee, who allegedly told him that the Ryan Center was "a private entity." (Eidman Decl. ¶ 4.) Of course, private entities can be covered institutions under the Act, so this information was of little value. But Eidman also visited the Ryan Center for five minutes to look around for evidence that it might be a covered facility. He allegedly saw none. (Eidman Decl. ¶ 5.)

On or about June 4, 2003—well after the two year period for filing an administrative complaint had expired but just before New York's two and one half year statute of limitations for medical malpractice ran, Donely, on behalf of herself and her daughter, filed a complaint in the Supreme Court, New York County, against Dr. Kong, St. Luke's, and others, but not including the Ryan Center. Plaintiffs claimed that defendants were negligent in providing obstetrical care to Donely, and that, as a result of such negligence, Elon sustained permanent physical injuries.

On September 25, 2003, then United States Attorney James B. Comey certified, pursuant to 38 U.S.C. § 7316(c), 28 U.S.C. § 2679, and 28 C.F.R. § 15.3(a), that Dr. Kong was acting within the scope of her federal employment at the time of the alleged incidents giving rise to the complaint. That certification meant that the FTCA provides the exclusive remedy with respect to the claims asserted against Dr Kong.2

On September 30, 2003, the United States removed the state court action to federal court pursuant to 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d)(2). The United States was substituted as defendant to the extent plaintiffs' claims were against Dr. Kong. On November 21, 2003, plaintiffs' claims against the United States were dismissed without prejudice, pursuant to FED. R. CIV. P. 12(b)(1), because plaintiffs had failed to present an administrative claim to the appropriate federal agency before filing a lawsuit, as required under 28 U.S.C. § 2675(a). The action was remanded to the New York State Supreme Court insofar as it was brought against the non-federal defendants.

Plaintiffs filed an administrative complaint with the Department of Health and Human Services ("HHS") on September 18, 2003.

On December 6, 2004, HHS denied the administrative claim pursuant to 28 U.S.C. § 2401(b) because the claim was presented more than two years after the cause of action accrued. The parties agree that the cause of action accrued on December 13, 2000, the day Elon was born.

Plaintiffs did not appeal the HHS decision. Rather, on May 17, 2005, they filed a complaint in this action.

Defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1) on August 2, 2005.

Standard of Review

In assessing a motion to dismiss for lack of subject matter jurisdiction, a court must "accept as true all material factual allegations in the complaint," Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). However, unlike a motion to dismiss for failure to state a claim, the court refrains from "drawing from the pleadings inferences favorable to the party asserting [jurisdiction]." Id. (citing Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.E d. 413 (1925)). Courts evaluating Rule 12(b)(1) motions "may resolve the disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Zappia Middle East Construction Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir.2000).

On a motion to dismiss pursuant to Rule 12(b)(1), plaintiff carries the burden of establishing that subject matter jurisdiction exists over the complaint. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996); In re Joint E. & So. Dist. Asbestos Litig., 14 F.3d 726, 730 (2d Cir.1993); Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir.1983).

Discussion
Statute of Limitations

The FTCA clearly requires a plaintiff who asserts a tort claim against the United States to file a written administrative claim with the relevant agency (in this case, the Department of Health and Human Services) within two years of the accrual of the cause of action. If the plaintiff does not do so, the action "shall be barred forever." 28 U.S.C. § 2401(b). The requirements of section 2675(a) extend "to all suits including those begun in state court." Celestine v. Mount Vernon Neighborhood Health Center, 403 F.3d 76, 82 (2d Cir.2005). The "burden is on the plaintiff to both plead and prove compliance" with the statutory requirement of timely filing an administrative claim. In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir.1987) (citations omitted).

"For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives [the claim] from a claimant." 28 C.F.R. § 14.2(a); see also Spinale v. United States, 03 Civ. 1704(KMW)(JCF), 2004 WL 50873, at *10 (S.D.N.Y. Jan. 9, 2004). Here, the administrative claim was received on September 18, 2003, approximately thirty-three months after the claim accrued and well beyond the two year period allowed for filing. Plaintiffs' action against the United States is, therefore, presumptively time-barred.

Equitable Tolling

Plaintiffs contend that I should apply the equitable tolling doctrine. The equitable tolling doctrine is "an extraordinary measure that applies only when plaintiff is prevented from filing despite exercising that level of diligence which could reasonably be expected in the circumstances." Veltri v. Building Service 32J Pension Fund, 393 F.3d 318, 322 (2d Cir.2004). The FTCA limitations period may be equitably tolled "so long as defendant's concealment of their wrongdoing prevented plaintiffs] from becoming aware of, or discovering through the exercise of reasonable diligence, [their] cause of action." Kronisch v. United States, 150 F.3d 112, 123 (2d Cir.1998).

The evolution of the equitable tolling doctrine in the Federal Tort Claims Act context was tortured. In Kelley v. United States, 568 F.2d 259 (2d Cir.1978), the United States Court of Appeals for the Second Circuit ruled that an action could be maintained against the United States— even if no administrative claim is filed within two years, as required by the FTCA—as long as the individual for whom the United States is substituted as defendant was timely sued in the state court where the action originated. Some years after this ruling, Kelley was superceded by a statute known as the Westfall Act, formally known as the Federal Employees Liability Reform and Tort Compensation Act ("Westfall Act"), Pub.L. 100-694, 102 Stat. 4563 (1988). The revised FTCA now provides that state court claims removed to federal court will still be considered timely only if (1)...

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    • November 30, 2007
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 29, 2008
    ...over the detailed procedural history of the case that may be found in the opinion of the district court, Valdez ex rel. Donely v. United States, 415 F.Supp.2d 345, 347-48 (S.D.N.Y.2006), we provide some additional necessary Before Elon was born, her mother, Tiffany Donely, a nineteen-year-o......

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