M.J. v. Georgetown Univ. Med. Ctr.

• Decision Date: 22 August 2013
• Docket Number: Civil Action No. 13–283 (GK).
• Citation: 962 F.Supp.2d 3
• Parties: M.J., a minor, by and through Bianca JARVIS, his parent and natural guardian, Plaintiffs, v. GEORGETOWN UNIVERSITY MEDICAL CENTER, et al., Defendants.
• Court: U.S. District Court — District of Columbia

962 F.Supp.2d 3

M.J., a minor, by and through Bianca JARVIS, his parent and natural guardian, Plaintiffs,

v.GEORGETOWN UNIVERSITY MEDICAL CENTER, et al., Defendants.

Civil Action No. 13–283 (GK).

United States District Court, District of Columbia.

Aug. 22, 2013.

Michael Harris Bereston, Annapolis, MD, Peter M. Villari, Theresa L. Giannone, Villari, Brandes & Giannone, P.C., Conshohocken, PA, for Plaintiffs.

James Patrick Gleason, Jr., Joanna Jesperson, Gleason, Flynn, Emig & Fogleman, Chtd., Rockville, MD, for Defendants.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiff Bianca Jarvis (“Jarvis” or “Plaintiff”) brings this medical malpractice action, on behalf of her minor son, M.J., against the Georgetown University Medical Center, Georgetown University Hospital, Lori A. Picco, M.D., and Phyllis M. Rattey, R.N. (collectively, the “Georgetown Defendants”), and the United States of America (the “Government”).

This matter is before the Court on the Government's Motion to Dismiss [Dkt. No. 5]. Upon consideration of the Motion, Opposition [Dkt. No. 12], and Reply [Dkt. No. 16], the entire record herein, and for the reasons stated below, the Government's Motion is granted.

I. BACKGROUND¹A. Factual Background

On November 1, 1998, Jarvis was admitted to the Georgetown University Hospital twenty-five weeks pregnant with complaints of “abdominal spasms and spontaneous rupture of membranes.” Compl. ¶ 16. Over the next several days, she was monitored so that her baby could be “timely delivered in the event of infection and/or fetal distress.” Compl. ¶¶ 17–68. On November 6, 1998, Jarvis went into labor. Compl. ¶¶ 69–74. The attending physicians determined that her fetus should be delivered via cesarean section, but after administering an epidural, they found that she was completely dilated and “decided to forego the cesarean section and proceed with a vaginal delivery.” Compl. ¶¶ 95, 99–101. During the delivery, a sonogram of the fetus indicated “terminal fetal bradycardia.” Compl. ¶ 103.² Forceps and traction were then used to extract the fetus. Compl. ¶ 105.

M.J. was born on November 7, 1998, at 12:27 a.m. Upon delivery, he “was blue, with no respiratory effort or heart rate[,]” and had “extensive bruising on his head, neck and chest.” Compl. ¶¶ 106–07. Following delivery, M.J. was diagnosed with “perinatal asphyxia, respiratory distress syndrome, and extreme prematurity,” and was admitted to the neonatal intensive care unit, where he remained for sixteen weeks. Compl. ¶¶ 108–110.³ M.J. now suffers from permanent brain damage, orthopedic injuries, global developmental delay, and other complications, which Plaintiff attributes to the timing and method of M.J.'s delivery, specifically Defendants' decision to deliver M.J. vaginally rather than by cesarean section. See Compl. ¶¶ 112, 117, 119.

B. Procedural Background

On January 2, 2013, more than 14 years after M.J.'s birth, Jarvis filed this medical malpractice action in District of Columbia Superior Court. The case was initially brought against the Georgetown Defendants and Dr. Christian Macedonia, one of the doctors involved in M.J.'s delivery. On March 4, 2013, the Government substituted itself as a party defendant on behalf of Dr. Macedonia, and removed the case to this Court pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the “Westfall Act”), 28 U.S.C. § 2679. According to the removal papers, at the time of M.J.'s delivery, Dr. Macedonia was a federal employee, serving as a Major in the United States Army and completing a fellowship at Georgetown University Hospital. Plaintiff's claim against Dr. Macedonia is therefore deemed to be an action against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). See28 U.S.C. § 2679(d). Dr. Macedonia was dismissed as a defendant on April 10, 2013.

On March 20, 2013, the Government moved to dismiss Plaintiff's FTCA claim pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction [Dkt. No. 5]. On April 3, 2013, Plaintiff filed her Opposition [Dkt. No. 12], and on May 15, 2013, the Government filed a Reply [Dkt. No. 16].

II. STANDARD OF REVIEW

Under Rule 12(b)(1), the plaintiff bears the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction. See Shuler v. United States, 531 F.3d 930, 932 (D.C.Cir.2008). In deciding whether to grant a motion to dismiss for lack of jurisdiction, the court must “accept all of the factual allegations in [the] complaint as true[.]” Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253–54 (D.C.Cir.2005) (citing United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)) (quotation marks omitted). The Court may also consider matters outside the pleadings, and it may rest its decision on its own resolution of disputed facts. See Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992). ⁴

III. ANALYSISA. The Federal Tort Claims Act

It is basic hornbook law that the United States, as sovereign, is immune from suit unless it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). By enacting the FTCA, Congress partially waived the Government's sovereign immunity for claims of “personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b). However, Congress conditioned such waiver on the requirement that a plaintiff present her claim “in writing to the appropriate Federal agency within two years after such claim accrues,” and thereafter file her action in court within six months of agency's final denial of her claim. 28 U.S.C. § 2401(b).

Under the Westfall Act, the FTCA is the exclusive mechanism by which a plaintiff may seek damages for any “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1). Where, as in this case, a plaintiff has originally sued the employee in his or her individual capacity, the Westfall Act deems the action to be one against the Government under the FTCA, and requires the Government to be substituted as party defendant in the employee's place. See28 U.S.C. § 2679(d)(2).

Because substitution of the United States as a party might occur long after the FTCA's two-year limitations period has expired, the Westfall Act contains a “savings provision” for actions initially brought against an individual Government employee, subsequently converted into an FTCA claim against the Government, and thereafter dismissed for failure to file an administrative claim. See Mittleman v. United States, 104 F.3d 410, 413 (D.C.Cir.1997) (citing 28 U.S.C. § 2679(d)(5)(A)). In such cases, the savings clause provides a 60–day grace period for the plaintiff to file her claim with the appropriate agency, but only if such “claim would have been timely had it been filed on the date the underlying civil action was commenced [.]” 28 U.S.C. § 2679(d)(5). Otherwise, a claim not timely presented to the appropriate federal agency is “forever barred.” 28 U.S.C. § 2401(b); Mittleman, 104 F.3d at 413.

B. Plaintiff's Claim Is Time–Barred

It is undisputed that Jarvis did not file an administrative claim before commencing this case. See Def.'s Mem. at 4 & Ex. 2 (Decl. of Major Linda A. Chapman); Pl.'s Opp'n at 5. The parties dispute, however, whether she may exhaust her administrative remedies now that she is aware of Dr. Macedonia's previous status as a federal employee. According to the Government, Plaintiff's claim is barred by the FTCA's two-year statute of limitations. Plaintiff counters that her claim is not time-barred because it did not accrue until this year, and in the alternative, that equitable tolling should apply to permit her case to proceed.

1. M.J.'s Claim Accrued in 1998

Plaintiff first argues that M.J.'s claim did not accrue until March 2013, when she learned of Dr. Macedonia's status as a Government employee. Pl.'s Opp'n at 6–7. The Government contends that M.J.'s claim accrued on M.J.'s date of birth, when Jarvis learned of the injuries she now attributes to the Government. Reply at 7–11.

Accrual of a claim under the FTCA is governed by federal law. See Sexton v. United States, 832 F.2d 629, 633 n. 4 (D.C.Cir.1987). The seminal case on FTCA medical malpractice claims is United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). In Kubrick, the Supreme Court held that a medical malpractice claim accrues when the plaintiff knows “the critical facts that [s]he has been hurt and who has inflicted the injury,” even if she does not know that the injury was “negligently inflicted.” Kubrick, 444 U.S. at 122, 123, 100 S.Ct. 352. The Court reasoned that:

A plaintiff ... armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.

Id. at 123, 100 S.Ct. 352.

The D.C. Circuit has construed Kubrick to stand for the proposition that “a plaintiff's understanding of the basic nature of the [allegedly improper] treatment should suffice to begin the statute running.” Sexton, 832 F.2d at 633. Stated differently, a medical malpractice claim accrues when the plaintiff possesses sufficient “historical facts associated with the injury” to permit her to “undertake a reasonably diligent investigation to determine whether a cause of action may lie.” Id. at 633–34;see also McCullough v. United States, 607 F.3d 1355, 1359 (11th Cir.2010) (a medical malpractice claim accrues when plaintiff “is, or in the exercise of reasonable diligence should be,...