Ramírez-Carlo v. U.S.

• Decision Date: 01 August 2007
• Docket Number: No. 06-1559.,06-1559.
• Citation: 496 F.3d 41
• Parties: Silvestre RAMÍREZ-CARLO, et al., Plaintiffs, Appellants, v. UNITED STATES of America (Department of Veteran's Affairs), Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

496 F.3d 41

Silvestre RAMÍREZ-CARLO, et al., Plaintiffs, Appellants, v. UNITED STATES of America (Department of Veteran's Affairs), Defendant, Appellee.

No. 06-1559.

United States Court of Appeals, First Circuit.

Heard January 12, 2007.

Decided August 1, 2007.

Luis M. Cháves-Ghigliotty, for appellant.

Germán A. Rieckehoff, Assistant united States Attorney, with whom Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

On February 11, 1998, Silvestre Ramírez Carlo ("Ramírez"), a Korean War veteran, filed an administrative claim with the Department of Veteran Affairs (the "VA") claiming that its failure to diagnose and treat him on October 22 and 23, 1996 resulted in the need for open-heart surgery, among other injuries. This claim was settled on April 19, 1999. On March 7, 2001, Ramírez filed a second administrative claim seeking damages for injuries incurred as a result of the VA's failure to treat a coronary condition it discovered on February 10, 1995, alleging that this failure contributed to his need for the open-heart surgery. The VA denied this claim on the ground that it was untimely. Ramírez appealed the VA's decision to a federal district court. The district court granted summary judgment in favor of the VA, concluding that Ramírez's claim for failure to treat his coronary condition was time-barred. Ramírez appeals that order. After careful consideration, we reverse and remand.

I. Background

On February 10, 1995, Ramírez was admitted at the San Juan VA Medical Center complaining of abdominal pain and general discomfort. He was diagnosed with appendicitis, but an appendectomy performed that day showed a normal appendix. An electrocardiogram ("EKG") performed that same day showed an inferior infarct (dead cardiac muscle tissue) and abnormalities in his heart's rhythm, which suggested a deficiency of blood supply to part of his heart. According to Ramírez, the VA did not inform Ramírez of these results. A VA doctor recommended that, after his discharge, Ramírez be given a stress test. The next day, cardiac enzyme studies showed normal results. On February 13, 1995, an infectious disease specialist examined Ramírez because he showed evidence of probable infection. That doctor recommended a battery of tests, including serial EKGs, cardiac enzyme studies, a cardiology evaluation, and an abdominal sonogram if abdominal pain persisted. On February 15, the hospital ordered an echocardiogram for a closer inspection of Ramírez's heart. On February 16, Ramírez was discharged and the hospital recommended a follow-up visit at the Surgical Clinic.

The echocardiogram ordered by the hospital was performed on May 5. It showed abnormalities in the heart's movement suggestive of a prior myocardial infarction and a mild dysfunction of the left lower chamber of the heart. On May 31, 1995, Ramírez was seen at the Surgery Clinic, and was described as doing well. He was given a follow-up appointment for November 29, 1995, but he did not keep that appointment.

On October 22, 1996, Ramírez was admitted to the Emergency Room of the Mayaguez VA Outpatient Clinic complaining of a two-week history of abdominal pain, which had worsened in the last three days. Ramírez's blood pressure was elevated, but he was described as being in no acute distress and his heart and extremities were described as "normal." Ramírez was discharged with a prescription for an antispasmodic and he was instructed to return the following day.

Ramírez returned to the Outpatient Clinic the next day, October 23, 1996, saying that he was feeling the same. His blood pressure was again high, but his abdomen was described as "normal" and the treating physicians noted again that he was not in acute distress. He was discharged with another prescription for antispasmodics. Up to this point, Ramírez had been under the VA's constant and exclusive care since 1977.

Later that day, Ramírez went to the Emergency Room at La Concepción Hospital complaining of chest pain. Ramírez's blood pressure was high and an EKG showed an old inferior wall myocardial infarction (old dead cardiac muscle tissue), as well as an acute anterior wall myocardial infarction (heart muscle tissue that was dying due to a deprivation of blood supply). He was admitted to the intensive care unit.

On October 28, La Concepción Hospital referred Ramírez to Hospital Perea for a cardiac catheterization. That test detected three partially or totally obstructed heart vessels. On October 29, Ramírez was transferred to St. Luke's Hospital where he underwent coronary bypass surgery on October 31, 1996 and was discharged on November 19, 1996.

On February 11, 1998, Ramírez filed a timely administrative claim (the "first claim") with the VA alleging that on October 22 and 23, 1996, the VA Mayaguez Outpatient Clinic failed to diagnose and treat the condition (pre-infarction angina) that caused the myocardial infarction that led to open-heart surgery on October 31, 1996. As a result of this claim, the parties engaged in settlement negotiations.¹ According to Ramírez, on March 16, 1999, during settlement negotiations, the VA informed Ramírez that the EKG performed in February 1995 showed a coronary condition that could have been treated. Ramírez claims this was the first time he had heard about those EKG results. He also claims that the parties agreed that, as a condition of settlement, the parties would "sever" the part of the claim relating to the failure to treat the coronary condition revealed by the February 1995 EKG (the "second claim"), and Ramírez would submit that claim on a later date. As evidence of that agreement, Ramírez points to a letter sent by his lawyer to the VA confirming the settlement and stating, "We are willing to sever the part of the claim which covers the damages resulting from the heart by-pass operation, and resubmit the same." It appears that the VA never responded to this letter. On April 19, 1999, Ramírez signed a Settlement Agreement for $30,000.

On March 7, 2001, Ramírez filed a second administrative claim alleging that the VA's failure to treat Ramírez's coronary condition contributed to his need for the open heart surgery. More than three years later, on May 27, 2004, the VA denied Ramírez's second claim on timeliness grounds, noting that the administrative claim was filed outside the two year period established by 28 U.S.C. § 2401(b). In its letter denying the claim, the VA indicated that during the investigation of the first claim and its subsequent settlement, it had considered Ramírez's pre-existing coronary artery disease claim and rejected it.²

On December 10, 2004, Ramírez filed a complaint in federal district court against the VA for money damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671-2680, alleging that the VA's failure to treat his coronary condition amounted to medical malpractice, which resulted in his suffering a myocardial infarction that required open heart surgery. On January 13, 2006, the district court adopted Magistrate Judge Vélez-Rivé's Report and Recommendation granting summary judgment in favor of the VA on the grounds that the action was time-barred.

II. Standard of Review

We review the grant of summary judgment de novo. See Napier v. F/V DEESIE, Inc., 454 F.3d 61, 64 (1st Cir. 2006). We will reverse the lower court if, after viewing the facts and making all inferences in favor of the non-moving party, the evidence on record is "sufficiently open-ended to permit a rational fact finder to resolve the [liability] issue in favor of either side." Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995); see Fed. R.Civ.P. 56.

III. Discussion

The FTCA is a limited waiver of sovereign immunity by the United States whereby a claimant can sue for the "negligent or wrongful act or omission" of certain government employees. 28 U.S.C. § 1346(b)(1). However, "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." § 2401(b). The general rule is that a tort claim accrues at the time of the plaintiff's injury. United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). However, under the well-established "discovery rule" exception, a claim accrues when the plaintiff discovers, or should have discovered, the factual basis for the cause of action. González v. United States, 284 F.3d 281, 288 (1st Cir.2002).

Ramírez makes three arguments on appeal that his second claim is not time-barred. His first argument is that his first claim put the VA on notice of his second claim, and that therefore they were both filed on February 11, 1998. In support of his argument, Ramírez points out that the VA admitted to considering the merits of the second claim as part of its investigation of the first claim.

Under the FTCA, "[a]n action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the claim to the appropriate Federal agency." 28 U.S.C. § 2675(a). This process is intended to provide sufficient notice to the United States so that it can investigate the alleged incident of negligence. See López v. United States, 758 F.2d 806, 809-10 (1st Cir. 1985). An agency must receive "enough information" in the claim filed in order to begin the investigation. Santiago-Ramírez v. Sec'y of Dep't of Defense, 984 F.2d 16, 19 (1st Cir.1993). Accordingly, the test to satisfy this requirement "is an eminently pragmatic one: as long as the language of an administrative claim serves due notice that the agency should investigate the possibility of particular (potentially tortious) conduct and includes a specification of the damages sought, it fulfills the...