Anderson v. United States, 10–1597.

• Decision Date: 14 February 2012
• Docket Number: No. 10–1597.,10–1597.
• Citation: 669 F.3d 161
• Parties: Angelia M. ANDERSON, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

669 F.3d 161

Angelia M. ANDERSON, Plaintiff–Appellant,
v.
UNITED STATES of America, Defendant–Appellee.

No. 10–1597.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 25, 2011.Decided: Dec. 20, 2011.Ordered Published Feb. 14, 2012.

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ARGUED: Byron Leslie Warnken, Warnken, LLC, Towson, Maryland, for

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Appellant. Lewis S. Yelin, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Kerry D. Staton, Jonathan Schochor, Schochor, Federico & Staton, P.A., Baltimore, Maryland, for Appellant. Tony West, Assistant Attorney General, Rod J. Rosenstein, United States Attorney, Thomas M. Bondy, Civil Division, United States Department of Justice, Washington, D.C., for Appellee.

Before DAVIS, KEENAN, and DIAZ, Circuit Judges.

Order of Certification of a question of law to the Court of Appeals of Maryland. Judge DIAZ prepared the order, in which Judge DAVIS and Judge KEENAN joined.

ORDER DIAZ, Circuit Judge:I. Question Certified

Angelia Anderson sued the United States under the Federal Tort Claims Act (“FTCA”) in January 2008 in the U.S. District Court for the District of Maryland. In her complaint, Anderson alleges that she received negligent medical care at the Veterans Administration Medical Center in Baltimore, Maryland (“VA Hospital”) from February through December 2002. The district court granted the government's motion to dismiss for lack of subject matter jurisdiction, reasoning that Maryland Code, Courts and Judicial Proceedings Article Section 5–109(a)(1) constituted a five-year statute of repose that barred Anderson's claim. On appeal, Anderson argues that Section 5–109(a)(1) constitutes a statute of limitations that is preempted by the FTCA's statute of limitations.

The U.S. Court of Appeals for the Fourth Circuit, exercising the privilege afforded it by the Maryland Uniform Certification of Questions of Law Act, Md.Code Ann., Cts. & Jud. Proc. §§ 12–601 through 12–613, and Maryland Rule 8–305, now certifies the following question of Maryland law to the Court of Appeals of Maryland:

Does Section 5–109(a)(1) of the Courts and Judicial Proceedings Article of the Maryland Code constitute a statute of limitations or a statute of repose?

The answer to this question does not appear to be directly controlled by any Maryland appellate decision, constitutional provision, or state statute. The Court of Appeals of Maryland has referred to Section 5–109 both as a statute of limitations and a statute of repose, contrast Hill v. Fitzgerald, 304 Md. 689, 501 A.2d 27, 32 (1985), with Rivera v. Edmonds, 347 Md. 208, 699 A.2d 1194, 1195 (1997), but no case appears to have conclusively resolved the issue.

The district court's finding that Section 5–109(a)(1) is a statute of repose stems primarily from a recent opinion of the Court of Appeals of Maryland discussing the statute, Burnside v. Wong, 412 Md. 180, 986 A.2d 427, 440 (2010). The answer to this certified question is outcome determinative of this appeal because Anderson's claim may proceed if the district court erred in concluding that Section 5–109(a)(1) was a statute of repose. Therefore, the question is properly subject to review by the Court of Appeals of Maryland on certification.

We acknowledge that the Court of Appeals of Maryland may reformulate this question.

II. Statement of Relevant Facts

Anderson first visited the VA Hospital in February 2002, complaining of lower back pain. An MRI revealed scattered marrow abnormalities in Anderson's lumbar

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spine and a radiologist recommended a bone scan, which was performed in May 2002 and showed abnormal results. Subsequently, a bone marrow biopsy was performed, resulting in a diagnosis of B-cell lymphoproliferative disease in Anderson's spine. Anderson was scheduled to begin chemotherapy in August 2002, but her doctors determined instead that a course of observation was more appropriate. Anderson was given a fentanyl patch to control her pain. Anderson returned to the VA Hospital in September 2002, reporting continuing pain on her left side; her doctors responded by increasing her pain medication.

On December 19, 2002, Anderson complained at the VA Hospital of increased pain and new symptoms, including pain and numbness radiating to her foot. She was discharged and instructed to report to the neurology clinic four days later. Anderson returned to the VA Hospital the next day complaining of increased pain in her back and an inability to move her legs. An MRI revealed no evidence of compression. Anderson again returned to the VA Hospital on December 23, reporting an inability to walk or stand and complaining of numbness up to her breasts. She was again discharged with instructions to return for another MRI on December 26. Anderson instead sought treatment at another hospital on December 24, where a physical examination and diagnostic tests revealed an epidural spinal tumor compressing her spinal cord. Anderson underwent immediate surgery to relieve the spinal compression and remained hospitalized until December 30.

Nearly a year later, on December 17, 2003, Anderson initiated an administrative claim with the Veterans Administration in Baltimore by filing a completed Standard Form 95 (Claim for Damage, Injury, or Death). She alleged that the VA Hospital failed to recognize the symptoms of progressive spinal cord compression due to an epidural spine tumor that developed as a result of her known cancer. She also alleged that the negligent care she received at the VA Hospital necessitated emergency surgery on her spine, and that, notwithstanding the emergency surgery, the VA Hospital's negligence left her with significant, permanent neurological deficits, severe and permanent disability, and incessant pain and emotional anguish.

For nearly four years, Anderson's claim proceeded through the administrative process, including significant settlement discussions, until it was denied as not amenable to administrative resolution by letter dated September 26, 2007. Anderson filed suit in the district court on January 2, 2008. The government moved to dismiss arguing that Anderson had failed to file a claim and an expert certificate with the Maryland Health Care Alternative Dispute Resolution Office (“HCADRO”), as required by Maryland's Health Care Malpractice Claims Act (codified at Md.Code Ann., Cts. & Jud. Proc. § 3–2A–04). The district court stayed the case to allow Anderson to file the complaint and certificate with HCADRO. Anderson complied and the district court lifted the stay.

The government then filed a second motion to dismiss, arguing that Section 5–109(a)(1), which it characterized as Maryland's statute of repose for health care malpractice claims, divested the court of subject matter jurisdiction because Anderson did not file her federal suit within the five-year statutory period. In its order granting the motion, the district court noted that Maryland courts have referred to Section 5–109 as a statute of limitations and that it contains tolling provisions that are generally inconsistent with statutes of repose. However, the district court concluded that, “particularly in light

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of the recent reference by the Court of Appeals in Burnside,” it was “constrained to conclude that the state's highest court views § 5–109(a)(1) as a statute of repose.” J.A. 227 (citing Burnside, 986 A.2d at 440). Thus, the district court granted the government's motion to dismiss for lack of subject matter jurisdiction.

The district court denied Anderson's subsequent motion for reconsideration, and Anderson timely appealed to this Court, assigning error to the district court's conclusion that Section 5–109(a)(1) is a statute of repose.¹

III. Legal Discussion and Relevant Maryland Case Law and Legislation A. The Government's Limited Waiver of Immunity under the FTCA

A plaintiff may recover against the United States only to the extent that it has expressly waived sovereign immunity. Welch v. United States, 409 F.3d 646, 650 (4th Cir.2005) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). Where the United States has not waived its sovereign immunity, a plaintiff's claim against the United States should be dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995).

Congress waived the sovereign immunity of the United States for certain torts committed by federal employees when it enacted the FTCA in 1946. Kerns v. United States, 585 F.3d 187, 194 (4th Cir.2009) (citing FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)). However, the FTCA is a limited waiver of immunity, imposing tort liability on the United States only “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, and only to the extent that “a private person[ ] would be liable to the claimant in accordance with the law of the place where the act or omission occurred,” id. § 1346(b)(1). In other words, a claimant “has an FTCA cause of action against the government only if she would also have a cause of action under state law against a private person in like circumstances.” Miller v. United States, 932 F.2d 301, 303 (4th Cir.1991). Thus, the substantive law of each state establishes the cause of action. Kerns, 585 F.3d at 194; Unus v. Kane, 565 F.3d 103, 117 (4th Cir.2009).

Whereas substantive state law establishes—and circumscribes—FTCA causes of action, “federal law defines the limitations period.” Miller, 932 F.2d at 303. This period is codified in 28 U.S.C. § 2401, which provides, in pertinent part, that “[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....” Id. § 2401(b). Here, it is undisputed that Anderson satisfied the FTCA statute of limitations by filing...