Bohrer v. CITY HOSP., INC.

• Decision Date: 07 January 2010
• Docket Number: Civil Action No. 3:08-CV-144.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Hugh and Cheryl BOHRER, as Parent and Legal Guardian for M.G., a Minor, Plaintiffs, v. CITY HOSPITAL, INC., and United States of America, Defendants.

681 F. Supp.2d 657

Hugh and Cheryl BOHRER, as Parent and Legal Guardian for M.G., a Minor, Plaintiffs, v. CITY HOSPITAL, INC., and United States of America, Defendants.

Civil Action No. 3:08-CV-144.

United States District Court, N.D. West Virginia, Martinsburg.

January 7, 2010.

Barry J. Nace, Jonathan B. Nace, Paulson & Nace, Washington, DC, D. Michael Burke, Burke, Schultz, Harman & Jenkinson, Martinsburg, WV, for Plaintiffs.

Christine S. Vaglienti, WVU Hospitals, Inc., Morgantown, WV, Matthew P. Moriarty, Tucker Ellis & West LLP, Cleveland, OH, Helen Campbell Altmeyer, U.S. Attorney's Office, Wheeling, WV, for Defendants.

ORDER GRANTING UNITED STATES' MOTION TO DISMISS

JOHN PRESTON BAILEY, Chief Judge.

The above-styled matter is currently before the Court on defendant United States' Renewed Motion to Dismiss for Lack of Jurisdiction Doc. 101 and Memorandum in Support Doc. 102; plaintiffs' Response in Opposition to United States' Motion to Dismiss Doc. 123 and Memorandum in Opposition Doc. 124; defendant United States' Supplement to its Motion to Dismiss Doc. 150; plaintiffs' Supplementary Response in Opposition to United States' Motion to Dismiss Doc. 171 and Memorandum in Opposition Doc. 173; and defendant's Reply Doc. 185. The Court has reviewed the record and the arguments of the parties, and for the reasons set out below finds that defendant United States' Renewed Motion to Dismiss for Lack of Jurisdiction Doc. 101 should be GRANTED.

I. BACKGROUND

Plaintiffs, Hugh and Cheryl Bohrer, are the legal guardian of M.G. Hugh and Cheryl Bohrer were substituted as plaintiffs for M.G.'s mother, Shannon Gregg on September 3, 2009. Doc. 117. Ms. Gregg first filed a Complaint on her own behalf and that of M.G. on May 27, 2003, alleging that M.G. suffered injuries at birth as a result of negligence on the part of Shenandoah Valley Medical Systems, Inc., Shenandoah Maternity Center, H. Alexander Wanger, M.D., Lori Goforth, C.N.M., and City Hospital, Inc. The birth of M.G. took place on November 14, 2000. Following M.G.'s birth by Caesarian section, the Complaint alleges that he had "multiple myoclonic episodes as well as tonic-clonic episodes which resulted in brain damage, developmental delay and reflux." Doc. 1.

On July 8, 2003, the United States substituted itself as the party defendant for Shenandoah Valley Medical Systems, Inc., Shenandoah Maternity Center, ("Shenandoah"), H. Alexander Wanger, M.D., and Lori Goforth, C.N.M., and accordingly filed a Notice of Removal to Federal District Court for the Northern District of West Virginia. The Notice of Substitution and Notice of Removal were based upon the fact that the United States Department of Health and Human Services deemed Shenandoah eligible for coverage under the Federal Tort Claims Act, 28 U.S.C. § 1346, 2671 et seq., ("FTCA"), as Shenandoah was an entity receiving federal grant money from the United States Public Health Service pursuant to 42 U.S.C. §§ 254(b) or 254(c).

Subsequent to the Removal, on August 19, 2003, the Defendant United States filed a Motion to Dismiss the Complaint based upon lack of subject matter jurisdiction as plaintiff had failed to present for consideration an administrative claim to the appropriate federal agency as is required by 28 U.S.C. § 2675(a). That Motion was opposed by plaintiff and following the submission of Memoranda on both sides, Judge W. Craig Broadwater entered an Order granting the United States' Motion to Dismiss on March 9, 2004.

On September 14, 2004, plaintiff filed an Administrative Tort Claim, approximately 189 days following the dismissal of her case in Federal District Court pursuant to the terms of the FTCA.

On September 22, 2008, plaintiffs filed suit in the Northern District of West Virginia alleging medical malpractice. Doc. 1. On January 29, 2009, the United States filed a Motion to Dismiss for Lack of Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) on the basis of the statute of limitations. Doc. 31. On April 28, 2009, this Court denied the United States' motion as premature and allowed discovery to continue on the issue of plaintiffs' knowledge. Doc. 57.

On August 19, 2009, the United States filed a Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction Doc. 101. In the motion, the United States argued that based on the deposition testimony of Ms. Gregg, as well as the expert opinion of Pediatric Neurologist Robert Clancy, M.D. ("Dr. Clancy"), it is clear plaintiffs knew or should have known of M.G's injuries shortly after his birth. Thus, the United States argued plaintiffs' claims are barred by the statute of limitations pursuant to 28 U.S.C. § 2401(B). Doc. 102. On September 1, 2009, plaintiffs filed a response, arguing defendant's motion was premature and requesting that the Court allow discovery to close before entertaining a motion to dismiss based on factual determinations. Doc. 114. Plaintiffs also substantively responded, arguing: (1) M.G.'s "injuries" were unknown or unknowable prior to September 14, 2002, because "it would have been totally impossible to predict the injuries M.G. would ultimately suffer at the time of M.G.'s birth" (Doc. 124 at 8); (2) the United States misconstrued the deposition testimony of Ms. Gregg and that she did not know, nor should she have known, of both an injury to M.G. and its cause prior to September 14, 2004 (Id. at 10); (3) the expert opinion of Dr. Clancy does not warrant "summary judgement" (Id. at 14); (4) the statements of plaintiffs' experts preclude summary judgment (Id. at 17); and (5) that this Court should equitably toll the statute of limitations (Id. at 18).

On September 10, 2009, this Court granted plaintiffs until November 10, 2009, to file a supplementary response to the United States' Renewed Motion to Dismiss. (See Doc. 127). The Court also allowed the United States to supplement its motion on or before October 27, 2009. Doc. 127.

On October 27, 2009, the United States filed a supplemental memorandum Doc. 150. In the Supplement, the United States argued: (1) the expert reports submitted by plaintiffs are consistent with the findings of Dr. Clancy (Doc. 150 at 1); (2) equitable tolling does not apply in the above-styled case (Id. at 7); and (3) it is plaintiffs' burden to timely identify the proper defendant (Id. at 11).

On November 6, 2009, this Court granted plaintiffs an additional extension until November 13, 2009, to file a supplementary response. Doc. 159. On November 13, 2009, plaintiffs filed a Supplementary Response in Opposition to the United States' Motion to Dismiss Doc. 171. In the Motion, plaintiffs argue that M.G.'s injuries did not manifest until January of 2003 at the earliest; that if the Court finds the injuries manifested prior to January 2003, the Court should equitably toll the statute of limitations; and finally, plaintiffs ask that this Court find—contrary to the authority of this Circuit—that plaintiffs' claim did not accrue until plaintiffs had reason to know of the Government's causal connection to the claim. Doc. 171. On November 24, 2009, the United States filed its Reply Doc. 185.

II. FACTS

On November 13, 2000, Shannon Gregg presented to City Hospital in Martinsburg, West Virginia. (Doc. 173 at 1). Ms. Gregg had a history of birth by Caesarean section, and had been informed that she could deliver her second child by vaginal delivery, commonly referred to as Vaginal Birth After C-section or "VBAC." (Id.) While at City Hospital, Ms. Gregg was under the care of Nurse Midwife Lori Goforth, C.N.M., and Alexander Wanger, M.D. (Id.) Nurse Goforth and Dr. Wanger induced labor, and on November 14, 2000 complications arose. (Id.) An emergency C-section was performed by Dr. Wanger at 12:30 a.m. on November 14, 2000. (Doc. 173 at 1). During the C-section it was discovered that the uterus had ruptured and that M.G. and the placenta were in the peritoneal cavity. (Id.)

M.G. was born on November 14, 2000 and taken to Johns Hopkins Hospital for evaluation. (Doc. 173 at 1). On November 25, 2000, M.G. was discharged to the care of Ms. Gregg. (Id.) M.G.'s discharge summary instructed: "Follow neurological status." (Doc. 176 at 7000A-7002A). The summary also noted: "An EEG was performed on 11/14/2000 which showed no burst suppression, no seizures. Brain CT without contrast on 11/14/2000 showed no intracranial mass. No midline shift. No evidence of hydrocephalus. (Id.)

Following the discharge of M.G. from Johns Hopkins Hospital, M.G. was taken into the care of pediatrician Andrew Berens, M.D. (Doc. 173 at 2). On or about November 28, 2000, M.G. was first seen by Dr. Berens, who noted:

Child is at notable risk for feto-anoxic brain injury, and although no further seizures seen, there does appear to be some clonic-type activity, very subtle in quality. Apparently is going to follow up with pediatric neurologist at Johns Hopkins in 1-2 months. After that point, we'll probably refer him to pediatric neurology in Martinsburg. Discussed with mom the possibilities of development of neurological complications. She's aware of it. Advised that some of these conditions may not show up until his development progresses, but needs to be watching for further recurrence of neonatal seizure activity.... We'll follow this closely, once a week. Call me if there is any change.

(Doc. 176 at 7003A). On or about December 21, 2000, Dr. Berens noted: "Perinatal seizures without recurrence but suspected hypoxic brain injury." (Id. at 7004A).

On April 19, 2001, when M.G. was five months old, an "Occupational Therapy Initial Evaluation" was performed by Occupational Therapist Leslie Bowman. (Doc. 176 at 7008A). The evaluation states:

Currently, M.G. is functioning at the following levels:

Fine Motor Visual tracking Age appropriate Grasp/Prehension 2-3 months Reach 2-4 months Release 0-2 months Bilateral skills 1-3.5 months Areas to Address 1. Parent education. 2. Developmental delay. 3. ...