656 F.3d 135 (2nd Cir. 2011), 10-2086-cv, A.Q.C. ex rel. Castillo v. United States

Docket Nº:10-2086-cv.
Citation:656 F.3d 135
Opinion Judge:GERARD E. LYNCH, Circuit Judge:
Party Name:A.Q.C., an infant, by her mother and natural guardian, Paquita CASTILLO, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, Bronx-Lebanon Hospital Center, Defendant.
Attorney:Mitchell L. Gittin (John E. Fitzgerald, John M. Daly, John J. Leen, on the brief), Fitzgerald & Fitzgerald, P.C., Yonkers, NY, for Plaintiff-Appellant. Amy A. Barcelo, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief), for Preet Bharara, United St...
Judge Panel:Before: NEWMAN, MINER, and LYNCH, Circuit Judges.
Case Date:September 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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656 F.3d 135 (2nd Cir. 2011)

A.Q.C., an infant, by her mother and natural guardian, Paquita CASTILLO, Plaintiff-Appellant,


UNITED STATES, Defendant-Appellee,

Bronx-Lebanon Hospital Center, Defendant. [*]

No. 10-2086-cv.

United States Court of Appeals, Second Circuit.

September 8, 2011

Argued: June 6, 2011.

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[Copyrighted Material Omitted]

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Mitchell L. Gittin (John E. Fitzgerald, John M. Daly, John J. Leen, on the brief), Fitzgerald & Fitzgerald, P.C., Yonkers, NY, for Plaintiff-Appellant.

Amy A. Barcelo, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellee.

Before: NEWMAN, MINER, and LYNCH, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

Plaintiff-appellant A.Q.C., by her mother and natural guardian Paquita Castillo, brought this medical malpractice action under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. §§ 1346, 2401, 2671-2680. The merits of that claim are not before us; instead, we must determine whether it is " forever barred" by the FTCA's two-year limitations period. See 28 U.S.C. § 2401(b).

We find that A.Q.C.'s claim accrued no later than February 2006, when Ms. Castillo consulted an attorney, diligently acting on information received in December 2005, when an early intervention counselor informed her that the injury A.Q.C. sustained at birth might have been iatrogenic (that is, caused by her doctor) and told Ms. Castillo that she should consider consulting an attorney. The law firm she selected, unfortunately, did not share her diligence. Rather than presenting A.Q.C.'s claim to the Department of Health and Human Services (" DHHS" ) within two years of either Ms. Castillo's December 2005 conversation with the early intervention counselor or the initial consultation in

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February 2006, the firm waited until April 7, 2008. That delay made the filing untimely by between two and four months. Moreover, the firm's dilatory response prevents equitable tolling— assuming arguendo that such tolling may be applied in medical malpractice actions brought under the FTCA— from saving A.Q.C.'s otherwise untimely complaint. We therefore affirm the judgment of the district court (Naomi R. Buchwald, J. ) dismissing the complaint as untimely.


Dr. Wilfred A. Castillo served as Ms. Castillo's regular obstetrician at a prenatal clinic run by Urban Health Plan, Inc. (" UHP" ), a federally funded healthcare provider serving the South Bronx.1 When it came time for Ms. Castillo to give birth, Dr. Castillo suggested that she do so at Bronx-Lebanon Hospital Center, and Ms. Castillo agreed. On February 1, 2005, Dr. Castillo delivered A.Q.C.

According to the amended complaint, A.Q.C. was born with weakness in her left arm and left leg. In part because of that debility, she was referred to an early intervention counselor who monitored her ongoing care. Ms. Castillo met with A.Q.C.'s counselor in December 2005. After reviewing some of A.Q.C.'s medical records, the counselor raised the possibility that A.Q.C.'s injury had been caused by medical malpractice and told Ms. Castillo that she " should consider looking into whether or not there was any medical malpractice relating to [her] daughter's birth."

Shortly thereafter, Ms. Castillo saw a television advertisement for Fitzgerald & Fitzgerald, P.C. (" Fitzgerald & Fitzgerald" or " the Firm" ). According to Ms. Castillo, that advertisement " discussed children with the same type of injuries [as A.Q.C., and indicated] that such injuries might [be] caused by medical malpractice during the birthing process." Ms. Castillo contacted the Firm in February 2006 and discussed with a paralegal the nature and potential cause of her daughter's injury. That consultation led to a retainer agreement, which the parties signed on April 27, 2006. According to the Firm, by August of that year it had " determined that [A.Q.C.'s] injuries were caused by medical malpractice during ... labor and delivery." Nevertheless, it did not present A.Q.C.'s claim to DHHS at that time.

On November 24, 2006, Ms. Castillo's attorneys met and discussed her case, but still no action was taken. At a second meeting held in March 2007, the Firm initiated " a full review of the medical records." After concluding that review, the Firm held a third meeting in early December 2007, at which it was decided that the appropriate next step was to file suit.

Although the Firm decided to bring this action, it evidently had not investigated whom or where to sue. More precisely, the Firm appears not to have known that UHP was a federally funded clinic or that Dr. Castillo was acting as a federal employee during the delivery. See 42 U.S.C. § 233(g)(1)(A). It was therefore unaware that the United States was legally responsible for the care that Dr. Castillo provided, see id. § 233(g)-(n), or that A.Q.C.'s medical malpractice claim had to be preceded by the filing of an administrative claim with DHHS, see 28 U.S.C. § 2401(b).

The Firm belatedly realized this important fact almost by accident. On or just before February 25, 2008, Fitzgerald & Fitzgerald attorney Ann Chase learned from a colleague that a doctor in an unrelated case had been deemed a federal employee. This prompted Chase to inquire into Dr. Castillo's status. She placed a toll-free call to a government hotline (1-866-FTCA-HELP) established for the

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very purpose of facilitating such inquiries and discovered that UHP was covered by the FTCA. She therefore correctly " presumed that Dr. Castillo might be deemed a federal employee." Approximately one month later, on April 7, 2008, the Firm presented A.Q.C.'s claim to DHHS. A contemporaneous memorandum circulated among A.Q.C.'s attorneys reveals that the Firm recognized the untimeliness of that claim form and intended " to ask for permission to file beyond two years."

During the pendency of A.Q.C.'s administrative claim, the Firm filed a summons and complaint in state court against Dr. Castillo and Bronx-Lebanon Hospital Center. On November 2, 2009, the government removed the case to the United States District Court for the Southern District of New York, substituted itself for Dr. Castillo, see 28 U.S.C. § 2679(d)(1), and moved to dismiss the complaint, alleging that A.Q.C. had failed to file her administrative claim within the applicable two-year limitations period, id. § 2401(b).

The district court found that A.Q.C.'s claim accrued in December 2005 when the early intervention counselor encouraged Ms. Castillo to seek legal advice. A.Q.C. ex rel. Castillo v. United States, 715 F.Supp.2d 452, 458 (S.D.N.Y.2010). It therefore determined that A.Q.C.'s claim, having accrued more than two years before its April 7, 2008, presentation to DHHS, was untimely. Id. at 464. The district court went on to reject the application of equitable tolling and ultimately granted the government's motion to dismiss. Id. This appeal followed.


I. Date of Accrual

On appeal, A.Q.C. argues that the district court erred in finding that her claim accrued at the time of Ms. Castillo's conversation with the early intervention counselor. According to A.Q.C., Ms. Castillo " could not have reasonably believed that her daughter's injuries ... were iatrogenic until her own medical records and her daughter's had been analyzed by experts." She therefore submits that her claim did not accrue " until July 27, 2006," once " Fitzgerald & Fitzgerald received [her] medical records." Alternatively, A.Q.C. submits that her claim accrued no earlier than April 27, 2006, the date on which Ms. Castillo retained counsel. We disagree.

Federal law determines the date that an FTCA claim accrues. Syms v. Olin Corp., 408 F.3d 95, 107 (2d Cir.2005); accord Tyminski v. United States, 481 F.2d 257, 262-63 (3d Cir.1973) (collecting cases). Typically, FTCA medical malpractice claims accrue " at the time of injury." Kronisch v. United States, 150 F.3d 112, 121 (2d Cir.1998); see also Barrett v. United States, 689 F.2d 324, 327 (2d Cir.1982) (" It has generally been held that under the FTCA a tort claim accrues at the time of the plaintiff's injury." ).2 However, where

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a 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." Kronisch, 150 F.3d at 121; see also Valdez ex rel. Donely v. United States, 518 F.3d 173, 177 (2d Cir.2008).

The diligence-discovery rule sets the accrual date at the time when, " with reasonable diligence," the plaintiff " has or ... should have discovered the critical facts of both his injury and its cause." Barrett, 689 F.2d at 327, citing United States v. Kubrick, 444 U.S. 111, 120 n. 7, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). This " is not an exacting requirement." Kronisch, 150 F.3d at 121. A claim will accrue when the plaintiff knows, or should know, enough " to protect himself by seeking legal...

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