518 F.3d 173 (2nd Cir. 2008), 06-1333, Valdez ex rel. Donely v. United States

Docket Nº:06-1333-cv.
Citation:518 F.3d 173
Party Name:Elon Emani VALDEZ, an Infant by Her Mother and Natural Guardian, Tiffany DONELY, and Tiffany Donely, Individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:February 29, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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518 F.3d 173 (2nd Cir. 2008)

Elon Emani VALDEZ, an Infant by Her Mother and Natural Guardian, Tiffany DONELY, and Tiffany Donely, Individually, Plaintiffs-Appellants,


UNITED STATES of America, Defendant-Appellee.

No. 06-1333-cv.

United States Court of Appeals, Second Circuit.

Feb. 29, 2008

Argued: Sept. 28, 2007.

Appeal from a judgment of the United States District Court for the Southern District of New York (McMahon, J.), dismissing plaintiffs-appellants' claims under the Federal Tort Claims Act ("FTCA") for failure to file an administrative notice of claim within two years after her cause of action accrued as prescribed by 28 U.S.C. § 2401(b).

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Annette G. Hasapidis, Law Offices of Annette G. Hasapidis, South Salem, NY, for Plaintiffs-Appellants.

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Heather K. McShain, Assistant United States Attorney (Sara Shudofsky, on the brief), Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellee.

Before: McLAUGHLIN and RAGGI, Circuit Judges, and KORMAN, District Judge.[*]

KORMAN, District Judge.

Elon Emani Valdez, a severely brain-damaged seven-year-old child, was born at St. Luke's-Roosevelt Hospital on December 13, 2000. At some point before, during, or after her birth, she had aspirated meconium - -a mixture of fecal matter and amniotic fluid. The aspiration of meconium is usually caused by fetal stress, brought on by infections in the womb or labor difficulties that cause the infant's intestines to undergo increased movement, "causing meconium to pass into the surrounding amniotic fluid." MedlinePlus Medical Encyclopedia: Meconium Aspiration Syndrome. "If the infant breathes while still in the uterus or while still covered by this fluid after birth, the mixture can enter the lungs and partially or completely block the infant's airways," causing respiratory distress. Id. The brain damage Elon suffered was apparently the result of this process, which is known as Meconium Aspiration Syndrome ("MAS"), a leading cause of severe illness and death in newborns. See id.("Lack of oxygen . . . from complications of meconium aspiration may lead to brain damage.").

Because immediate intervention in the delivery room "can sometimes help prevent" MAS, most infants are monitored during labor for fetal distress or any sign that would indicate that the child had aspirated meconium. Id. If a baby is thought to have inhaled meconium, treatment will begin during delivery. Although MAS can be serious, most cases are not, and not all infants who pass meconium during labor and delivery develop MAS. Nevertheless, Elon had swallowed a "significant amount of meconium" that resulted in her immediate transfer to the neonatal intensive care unit at New York-Presbyterian Hospital. There she received nitric oxide therapy, in which oxygen was added to her ventilator to dilute the blood vessels and allow more blood-flow and oxygen to reach her lungs. She was subsequently readmitted from New York-Presbyterian to St. Luke's NICU in mid-January, 2001, for approximately two months of additional care. Because bleeding in her brain had caused her to suffer seizures and brain atrophy, Elon required a feeding-tube and Phenobarbital to treat her seizures when she was finally discharged from St. Luke's on March 10, 2001.

We provide this background, which we have gleaned from the medical records relating to Elon's postnatal care and from medical literature, because it helps place in context the principal issue raised on this appeal from the judgment of the United States District Court for the Southern District of New York (McMahon, J.), dismissing on statute of limitations grounds a cause of action against the United States for malpractice. While we pass 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 background.

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Before Elon was born, her mother, Tiffany Donely, a nineteen-year-old eleventh-grade high school student, had received prenatal care from Dr. Christina Hye-Kyong Kong at the William F. Ryan Community Health Center, a federally funded healthcare facility. Dr. Kong also assisted in the delivery of Elon at St. Luke's-Roosevelt Hospital. Because of her employment at the Ryan Center, Dr. Kong was deemed to be an employee of the United States. See Public Health Service Act, 42 U.S.C. § 233(g)-(n) (2003). By virtue of this relationship, any malpractice cause of action had to be preceded by the filing of an administrative claim with the Department of Health & Human Services within two years after the cause of action accrued. 28 U.S.C. § 2401(b). Otherwise, the tort claim is "forever barred." Id.

An administrative claim was not filed on Elon's behalf within two years of her date of birth. Instead, on June 4, 2003, almost two and one-half years after her birth, within the period prescribed by the New York statute of limitations, N.Y. C.P.L.R. § 214-a (McKinney 2003), her mother, suing both individually and as her daughter's guardian, filed a complaint for alleged medical malpractice against Dr. Kong and others in New York State Supreme Court. The factual basis for the medical malpractice cause of action is not spelled out in the complaint. Because the discharge and aspiration of meconium may occur during the process of birth without medical fault, we assume the complaint is based principally on the failure to take precautions that would have avoided or mitigated the "serious, catastrophic permanent personal injuries [Elon] suffered." Amended Complaint at 3.

The complaint was subsequently removed to the United States District Court, and the United States was substituted as a party defendant. Upon the United States Attorney's motion to dismiss for failure to file an administrative claim with the Department of Health & Human Services, Ms. Donely proceeded to do so, thereafter amending her complaint. The district court, nevertheless, granted the motion to dismiss in light of plaintiffs' failure to file the administrative claim within two years after the cause of action accrued. The basis for the dismissal was that the cause of action was untimely and that the statute of limitations was not tolled by the fact that Elon's mother lacked knowledge that the William F. Ryan Community Health Center was a federally funded healthcare facility and that Dr. Kong was deemed to be a federal employee. The court found no fraudulent concealment of federal funding or employment by the United States. In any event, it concluded that the attorney for Elon's mother, whom she retained on February 12, 2002, and who was sufficiently aware of the possibility that the Ryan Center was affiliated with a government agency to undertake some effort to investigate its status, had not done enough to ascertain the pertinent facts. While these conclusions are disputed by the parties on this appeal, we identify a threshold concern: identifying the proper accrual date for plaintiffs' federal claim.


I. Accrual of the Federal Tort Claims Act Claim

Although timely administrative exhaustion is a necessary prerequisite to the pursuit of a malpractice claim against the United States, the law affords some flexibility when a plaintiff who overlooks this requirement files a complaint within the prescribed time for administrative review. The failure of Elon's mother to file an administrative claim before the initial complaint was filed in state court was excusable if that complaint was filed within two

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years after the cause of action accrued. 28 U.S.C. § 2679(d)(5); see also Celestine v. Mt. Vernon Neighborhood Health Ctr., 403 F.3d 76, 83 (2d Cir. 2005). In such circumstances, it would have been appropriate to dismiss the complaint after removal to federal court, but the law would have afforded Elon's mother sixty days from the date of dismissal to file an administrative claim and six months from the denial of her claim to recommence the lawsuit. See 28 U.S.C. § 2679(d)(5).Because she filed the administrative claim within sixty days after the dismissal of the complaint and refiled an amended complaint within six months of that denial, the first step in resolving this appeal is fixing the point in time at which the cause of action accrued.

A claim under the Federal Tort Claims Act accrues on the date that a plaintiff discovers that he has been injured. See Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998). "However, . . . where plaintiff would reasonably have had difficulty discerning the fact or cause of injury at the time it was inflicted, the so-called 'diligence-discovery rule of accrual' applies. Under this rule, accrual may be postponed until the plaintiff has or with reasonable discovery should have discovered the critical facts of both his injury and its cause." Id.1 The leading Federal Tort Claims Act case is United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), in which the issue was addressed in the context of an action for medical malpractice. The plaintiff there developed a ringing sensation in his ears, along with some loss of hearing, six weeks after being treated with neomycin for an infection in his thigh bone. Id. at 113-14, 100 S.Ct. 352. An ear specialist who had secured plaintiff's hospital records advised him that the loss of hearing was due to the neomycin treatment administered at the Veterans' Administration Hospital. Id. at 114, 100 S.Ct. 352. Despite this knowledge, the plaintiff failed to file a notice of claim within two years after being so advised. Id. at 115, 100 S.Ct. 352. The Supreme Court held that the cause of action...

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