Adkins v. United States

• Decision Date: 11 February 2013
• Docket Number: Civil Action No. 3:12–0076.
• Citation: 923 F.Supp.2d 853
• Parties: Batina ADKINS, Individually, and as Next Friend and Guardian of Draven Robertson, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

923 F.Supp.2d 853

Batina ADKINS, Individually, and as Next Friend and Guardian of Draven Robertson, Plaintiffs,

v.The UNITED STATES of America, Defendant.

Civil Action No. 3:12–0076.

United States District Court, S.D. West Virginia.

Feb. 11, 2013.

Arden J. Curry, II, David K. Schwirian, Pauley Curry Sturgeon & Vanderford, Charleston, WV, for Plaintiffs.

Fred B. Westfall, Jr., U.S. Attorney's Office, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, Chief Judge.

Pending before the Court is Defendant's Motion to Dismiss (ECF No. 23). For the reasons stated below, the Court DENIES the Motion.

Statement of Facts

Plaintiff Batina Adkins, acting individually and as next friend and guardian for her infant son Draven Robertson, commenced the instant litigation on January 17, 2012. Compl., ECF No. 1. Plaintiff alleges that Valley Health Systems, Inc. (“Valley Health”), and its employees provided prenatal care for Plaintiff during her pregnancy with Draven, including medical testing, and that “the testing indicated a significant potential risk of Draven Robertson experiencing ABO [blood] incompatibility.” Compl. ¶ 5. These blood antibody testing results mean that a baby faces a high chance of being born anemic, resulting in brain damage and other potential medical problems, or even death. ECF No. 29, p. 2. Blood monitoring, however, coupled with early delivery and blood transfusions during pregnancy, can prevent these medical problems from occurring at birth. Id. Valley Health, however, “negligently failed to promptly refer Batina Adkins to a high-risk obstetrics specialist, failed to complete appropriate laboratory testing for continued elevation of antibody titers, failed to observe and monitor Batina Adkins closely for biophysical profiles and ultrasounds, and failed to note and act upon the significance of, location of, and source of continued elevations of Ms. Adkins' white blood cells and other abnormalities.” Compl. ¶ 6.

Draven was born on October 21, 2008, and immediately hospitalized for a variety of medical problems, for which he was eventually discharged on November 21, 2008. Plaintiff alleges that Valley Health's negligence in failing to address Draven's antibody problem directly and proximately caused the following injuries to Draven: bilateral basil ganglia infarctions, germinal matrix hemorrhages, brain damage, and significant permanent developmental delays. Compl. ¶¶ 7–8. Because Valley Health is a federally funded healthcare clinic, Plaintiff alleges that the United States is vicariously liable for the negligence of Valley Health employees. Plaintiff now seeks damages from the United States on behalf of herself and her son for this negligence.

Defendant United States filed the pending motion to dismiss, arguing that Plaintiff's negligence claim should be dismissed as time-barred. Defendant argues that Plaintiff was aware of her son's brain damage and other medical problems, as well as the cause of those injuries, no later than Draven's hospital discharge on November 21, 2008, and that Plaintiff's cause of action accrued on that date. Plaintiff's claim is subject to a two-year limit mandated under the Federal Tort Claims Act, 28 U.S.C. § 1346, et seq. (“FTCA”):

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 or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b). Because Plaintiff's administrative claim was not filed with the Department of Health and Human Services until November 29, 2010,¹ over two years after the claim accrued, Defendant argues that Plaintiff's claim is untimely. Plaintiff responds that her cause of action did not accrue until January 2009, when she first learned that her son's injuries were iatrogenic (caused by a doctor), and that therefore her claim was timely filed under the FTCA. Plaintiff alternatively argues that her claim was tolled until at least November 23, 2009, based on the continuous treatment doctrine.²

The motion to dismiss first became ripe for disposition on December 28, 2012. Plaintiff shortly thereafter filed a motion requesting oral argument on the motion to dismiss, or alternatively leave to file a sur-reply brief. The Court granted such leave, and Plaintiff filed a surreply brief on January 11, 2013.

In Section I, the Court will discuss the standard of review applicable to this motion to dismiss. In Section II, the Court will examine the parties' arguments about when Plaintiff's cause of action accrued. In Section III, the Court will assess the possible application of tolling under the continuous treatment doctrine.

I. Standard of Review

Defendant's motion requests dismissal based on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiff's claim is time-barred under the FTCA. However, because “compliance with the FTCA statute of limitations is a jurisdictional prerequisite,” the substance of the motion in actuality is based exclusively on Rule 12(b)(1), which allows for dismissal based on lack of subject matter jurisdiction.³See Bohrer v. City Hosp., Inc., 681 F.Supp.2d 657, 663 (N.D.W.Va.2010) (citations omitted) (“The United States' motion [to dismiss], therefore, should be evaluated pursuant to the standard set out in Federal Rule of Civil Procedure 12(b)(1).”). A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it. It is axiomatic that a court must have subject matter jurisdiction over a controversy before it can render any decision on the merits.

Challenges to jurisdiction under Rule 12(b)(1) may be raised in two distinct ways: “facial attacks” and “factual attacks.” Thigpen v. United States, 800 F.2d 393, 401 n. 15 (4th Cir.1986). A “facial attack” questions whether the allegations in the complaint are sufficient to sustain the court's jurisdiction. Id. If a “facial attack” is made, the court must accept the allegations in the complaint as true and decide if the complaint is sufficient to confer subject matter jurisdiction. Id. On the other hand, a “factual attack” challenges the truthfulness of the factual allegations in the complaint upon which subject matter jurisdiction is based. In this situation, a “district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” ⁴Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982); Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir.1987)). To prevent dismissal, “the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” Id. (citations omitted). A dismissal should only be granted in those instances in which “the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. (citation omitted).⁵ Defendant's present motion to dismiss—challenging the date on which the claim accrued—is a factual attack rather than a facial attack. See Bohrer, 681 F.Supp.2d at 663. The burden of showing the existence of subject matter jurisdiction rests on the plaintiff. Id. (citation omitted).

The Court notes that, as a general proposition, “the FTCA's limited waiver of sovereign immunity must be strictly construed.” McKewin By & Through Harrell v. United States, No. 92–1770, 1993 WL 389568, at *1 (4th Cir. Oct. 4, 1993) (citations omitted) (unpublished decision). In “exceptional cases,” however, equitable tolling may apply to claims subject to the FTCA. Bohrer, 681 F.Supp.2d at 662. With this in mind, the Court now turns to the substance of Defendant's jurisdictional arguments.

II. Date of Accrual of Plaintiff's Cause of Action

As the Fourth Circuit has stated, “[a] medical malpractice cause of action under the FTCA accrues when the claimant discovers both the injury and its cause.” McKewin, 1993 WL 389568, at *2 (citing United States v. Kubrick, 444 U.S. 111, 123–25, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)). Also, “[t]he claimant need not be aware at the time of accrual that the injury may have been negligently inflicted.” Id. (citing Kubrick, 444 U.S. at 123–25, 100 S.Ct. 352). For injuries to minors, “the cause of action accrues when the parent knows of the minor's injury and the cause thereof, for the parent's knowledge is imputed to the child.” Id. (citation omitted). The claimant need only be aware of some form of the injury for the cause of action to accrue, and need not be aware of the full extent of the injury. Bohrer, 681 F.Supp.2d at 666;T.L. ex rel. Ingram v. United States, 443 F.3d 956, 962–63 (8th Cir.2006).

The parties disagree at to what constitutes discovery of an injury's “cause,” and therefore disagree over when Plaintiff's cause of action accrued. Defendant argues that Plaintiff discovered the cause of her son's injuries no later than November 21, 2008, when Draven was discharged from Cabell Huntington Hospital and an employee told Plaintiff that blood antibodies caused Draven's injuries. Plaintiff counters that although she did know in November that her son had experienced injuries, she did not discover that the injuries were the result of Valley Health's failure to address Draven's blood condition—and therefore did not truly know what caused her son's injuries—until January 2009, when Plaintiff's counsel reviewed the medical records.

This Court is persuaded that, when determining claim accrual for purposes of the FTCA, cases involving a failure to treat or diagnose or some other omission on the part...