Marzorati v. Medstar-Georgetown Med. Ctr., Inc.

• Decision Date: 14 July 2017
• Docket Number: Civil Action No. 16–2161 (RDM)
• Citation: 265 F.Supp.3d 24
• Parties: Antoinette MARZORATI, et al., Plaintiff, v. MEDSTAR–GEORGETOWN MEDICAL CENTER, INC., d/b/a Georgetown University Hospital, et al., Defendants.
• Court: U.S. District Court — District of Columbia

265 F.Supp.3d 24

Antoinette MARZORATI, et al., Plaintiff,

v.MEDSTAR–GEORGETOWN MEDICAL CENTER, INC., d/b/a Georgetown University Hospital, et al., Defendants.

Civil Action No. 16–2161 (RDM)

United States District Court, District of Columbia.

Signed July 14, 2017

James Charles Bailey, Bailey & Ehrenberg PLLC, Washington, DC, for Plaintiff.

Jeremy R. Krum, Armstrong, Donohue, Ceppos, Vaughan & Rhoades, Chartered, Rockville, MD, for Defendants.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

For years, Antoinette Marzorati suffered from head pain. After an extended search for a remedy, she opted to undergo surgery to cure her headaches in 2008. But the surgery made the problem worse rather than better. Marzorati (along with her husband, who is suing for loss of consortium) ultimately filed this lawsuit in 2016, asserting claims of medical malpractice against her surgeon and the hospital where she received treatment, and negligence against the hospital. The defendants have moved to dismiss, arguing that Marzorati waited too long before suing and that, as a result, the District of Columbia's three-year statute of limitations for malpractice and negligence claims bars her case. For the reasons discussed below, the Court agrees that some of Marzorati's claims are barred by the statute of limitations, but concludes that the bulk of her case may proceed to discovery.

I. BACKGROUND

For purposes of the pending motion to dismiss, the Court will accept the following facts, drawn from the amended complaint, as true. See Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011).

Seeking relief from head pain, Marzorati met with Dr. Ivica Ducic, a physician specializing in plastic surgery

and peripheral nerve surgery, who was employed by defendants MedStar–Georgetown Medical Center and MedStar Health. Dkt. 8 at 3 (Am. Compl. ¶¶ 7–8). Ducic recommended that Marzorati undergo a surgical procedure known as an occipital neurectomy, involving a bilateral decompression of the dorsal and greater occipital nerves and bilateral transection of the lesser occipital nerves. Id. (Am. Compl. ¶ 12). He advised Marzorati that the operation would partially or completely relieve her pain and that its "only disadvantage" would be a "dime-sized area of numbness behind each ear." Id. at 4, 5 (Am. Compl. ¶¶ 15, 23).

Marzorati underwent the operation on January 5, 2008. Id. at 5 (Am. Compl. ¶ 21). After the procedure, "Marzorati was left with severe, untreatable, and disabling pain," which she describes as "much worse" than what she experienced before the surgery. Id. (Am. Compl. ¶ 24). During a follow-up examination in April 2008, Marzorati informed Ducic that her pain "had become worse after" the surgery. Id. (Am. Compl. ¶ 26). In response, Ducic assured Marzorati that her condition was "not unusual" and advised her that "some people require a second surgery." Id. (Am. Compl. ¶ 25). Due to the increased pain resulting from her first operation, Marzorati "decided against [undergoing a] further procedure." Id. (Am. Compl. ¶ 27).

Marzorati alleges that she "did not have notice of wrongdoing on the part of Dr. Ducic" until March 2016, when she searched online for articles about Ducic "because of her continuing headache and pain." Id. (Am. Compl. ¶ 29). At that point, Marzorati "discovered a webpage indicating that other people had filed lawsuits against Dr. Ducic and the other [d]efendants for medical malpractice for surgery similar to what ... Marzorati received." Id. at 6 (Am. Compl. ¶ 30). That webpage, according to Marzorati, was first published in November 2014. Id. (Am. Compl. ¶ 32). On October 28, 2016, Marzorati filed this action. See Dkt. 1.

II. ANALYSIS

The parties agree that a three-year statute of limitations applies to Marzorati's lawsuit, which asserts claims for medical malpractice and negligence. Dkt. 9–1 at 6; Dkt. 10 at 2 (citing D.C. Code § 12–301(8) ). They also agree that the "discovery rule" applies in cases in which the relationship between the plaintiff's injury and the defendant's conduct is obscure. Dkt. 9–1 at 6; Dkt. 10 at 2. Under that rule, a claim does not accrue at the time of injury but, instead, accrues at the time the plaintiff "know[s] (or by the exercise of reasonable diligence should know) (1) of the injury, (2) its cause in fact, and (3) of some evidence of wrongdoing" by the alleged tortfeasor. Bussineau v. President & Dirs. of Georgetown Coll. , 518 A.2d 423, 425 (D.C. 1986). In assessing whether this test is satisfied, moreover, the Court must consider the relevant stage of the proceeding. The D.C. Circuit has held, for example, that summary judgment is unavailable if a "genuine issue of material fact exists as to the ultimate question of when [the plaintiff] discovered or should have discovered [the defendant's] alleged malpractice." Byers v. Burleson , 713 F.2d 856, 861 (D.C. Cir. 1983) ; see also Williams v. Mordkofsky , 901 F.2d 158, 162 (D.C. Cir. 1990). Because the present dispute arises at the motion to dismiss stage, defendants face an even higher hurdle. They are not entitled to offer their own evidence—even if uncontested—but must rely, instead, exclusively on the factual allegations contained in Marzorati's complaint. See Abhe & Svoboda, Inc. v. Chao , 508 F.3d 1052, 1059 (D.C. Cir. 2007). And, because a statute of limitations constitutes an affirmative defense, see Fed. R. Civ. P. 8(c), they cannot simply attack the sufficiency of the complaint.

Thus, to prevail on their statute of limitations defense at this early stage of the proceeding, defendants must demonstrate that "the allegations [contained in Marzorati's complaint affirmatively] show that relief is barred by the applicable statute of limitations." Jones v. Bock , 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). They must show, in other words, that the factual allegations of the complaint, read in the light most favorable to Marzorati, establish that she knew or should have known that she was injured, that the occipital neurectomy

procedure caused her injury, and that there was "some evidence" that one or more of the defendants was at fault. That is no easy task, and, under the present circumstances, it is not one that permits dismissal of the entire case. But, as explained below, defendants have met this heavy burden with respect to one portion of Marzorati's malpractice claim.

Marzorati's claims fall into two general categories: claims that Ducic failed to obtain her informed consent before performing the surgery and her remaining claims, which assert, among other things, that Ducic performed the surgery in a negligent or reckless manner and that the hospital was negligent in its hiring practices, training, supervision, and the provision of medical services. Dkt. 8 at 6–9 (Am. Compl. ¶¶ 36(a), 37, 44–45). With respect to her lack-of-informed-consent claim, the Court concludes that the factual allegations contained in Marzorati's own complaint establish that she knew or should have known, as early as April 2008, that Ducic and the hospital had failed to inform her of the risk that the occipital neurectomy

might make her pain worse, rather than better. The same is not true, however, with respect to her remaining claims.

Beginning with Marzorati's lack-of-informed-consent claim, her complaint alleges that, before the surgery, Ducic told her "that the only disadvantage to performing the occipital neurectomy

would be a dime-sized area of numbness behind each ear." Id. at 4 (Am. Compl. ¶ 15). After the surgery, however, when Marzorati "was left with severe, untreatable, and disabling pain," Ducic told her that "her condition was not unusual and that some people require a second surgery." Id. at 5 (Am. Compl. ¶¶ 24, 26). According to Marzorati's own allegations, moreover, Ducic "specifically instructed her at the follow-up examination that her new pain was not an unexpected consequence of the first procedure." Id. (Am. Compl. ¶ 28). Those twin allegations—first, that she was told before the surgery that the "only disadvantage" was the risk that she would experience a small area of numbness and, second, that she was told after the surgery that worsened pain was "not an unexpected consequence"—form the core of her lack-of-informed-consent claim. Marzorati's own complaint, however, establishes that she was aware of both of these facts as early as April 2008, when her follow-up examination occurred. Id. at 4, 5 (Am. Compl. ¶¶ 15, 26, 28). Because Marzorati did not bring her lack-of-informed-consent claim for another eight-and-a-half years, and because she has failed to identify any reason to believe that this information was insufficient to put her on notice of (1) her corresponding injury (her worsened pain), (2) its cause (her decision to undergo the surgery), and (3) "some evidence of wrongdoing" by the defendants (defendants' failure to warn her about the risk of worsened pain), her lack-of-informed-consent claim is time-barred as a matter of law.

That same logic does not, however, extend to the remainder of Marzorati's claims. Those claims allege, among other things, that Ducic engaged in "[n]egligence, gross negligence, and reckless and willful misconduct in performing [the] occipital neurectomy

," id. at 7 (Am. Compl. ¶ 36(d)), and that the hospital was negligent in hiring, training, and supervising Ducic, id. at 8–9 (Am. Compl. ¶¶ 44–45).

Although Marzorati was undoubtedly aware of her injury (worsened pain following her surgery) in 2008, and although she did not bring suit within three years of sustaining that injury, that is not enough for defendants to prevail at this stage of the proceeding. To prevail on a motion to dismiss, defendants must be able to show that the allegations of the complaint themselves foreclose Marzorati's reliance on the discovery rule. They cannot satisfy that burden.

To start, it bears emphasis that the discovery rule applies with special force in medical malpractice cases. As the D.C....