Pinilla v. United States, 012319 FED4, 17-1992

Docket Nº:17-1992
Opinion Judge:PER CURIAM.
Party Name:MICHAEL E. PINILLA, as Guardian ad Litem for Erick V-P, a minor under the age of 14, and as assignee of parent's claim for medical expenses, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.
Attorney:Edward Graham, GRAHAM LAW FIRM, PA, Florence, South Carolina, for Appellant. Dennis Fan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Chad A. Readler, Acting Assistant Attorney General, Mark B. Stern, Nitin Shah, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washing...
Judge Panel:Before MOTZ and FLOYD, Circuit Judges, and James P. JONES, United States District Judge for the Western District of Virginia, sitting by designation.
Case Date:January 23, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
FREE EXCERPT

MICHAEL E. PINILLA, as Guardian ad Litem for Erick V-P, a minor under the age of 14, and as assignee of parent's claim for medical expenses, Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA, Defendant-Appellee.

No. 17-1992

United States Court of Appeals, Fourth Circuit

January 23, 2019

UNPUBLISHED

Argued: September 26, 2018

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:15-cv-01077-JFA)

ARGUED:

Edward Graham, GRAHAM LAW FIRM, PA, Florence, South Carolina, for Appellant.

Dennis Fan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

ON BRIEF:

Chad A. Readler, Acting Assistant Attorney General, Mark B. Stern, Nitin Shah, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Kara A. Hicks, Senior Attorney, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Washington, D.C.; Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before MOTZ and FLOYD, Circuit Judges, and James P. JONES, United States District Judge for the Western District of Virginia, sitting by designation.

Reversed and remanded by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM.

Erick V-P suffered an arm injury at birth when he became stuck in the birth canal and required a physician's assistance to complete delivery. Three and a half years later, his guardian ad litem (GAL) initiated a medical-malpractice claim on Erick's behalf pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80, alleging that the attending physician had used excessive force on Erick's head and neck and thereby caused him permanent injury. The district court granted the United States' motion for summary judgment, holding that the claim was time-barred by the FTCA's two-year statute of limitations. Because we hold that Erick's medical-malpractice claim did not accrue until medical professionals could have diagnosed him with a permanent injury that was caused by his physician, we reverse.

I.

Erick was born on July 4, 2010 through a head-first vaginal delivery. The attending physician was Dr. Oluseyi Ogunleye, an employee of Eau Claire Cooperative Health Center. During delivery, Erick's shoulder became lodged behind his mother's pelvic bone, and he could not exit the birth canal without assistance, a condition known as shoulder dystocia. Dr. Ogunleye maneuvered Erick to release his shoulder in order to complete the delivery. Upon birth, Erick's right arm was limp, signifying that he had suffered a brachial plexus nerve injury. Such injuries can occur naturally from the forces exerted by the mother's body during labor, but they can also result from a physician's improper use of force on the child's head or neck. While Erick's older sibling was born with a similar injury that healed soon after birth, Erick never fully recovered the use of his arm.

Nearly three years after Erick's birth, on July 3, 2013, Erick's GAL, Michael Pinilla, filed a Notice of Intent to File Suit (NOI) in South Carolina state court. NOIs are required by South Carolina law prior to filing a summons and complaint for any medical-malpractice claim. See S.C. Code Ann. § 15-79-125(A) (2018). Pinilla's NOI asserted his intention to bring a medical-malpractice claim against Dr. Ogunleye and Eau Claire. J.A. 775-80. An accompanying expert affidavit-which South Carolina law requires to be filed with any medical-malpractice NOI-opined that Dr. Ogunleye had used excessive force on Erick's head during delivery. J.A. 764.

At the time, Dr. Ogunleye's employer, Eau Claire, received federal grant money, which made Dr. Ogunleye a federal employee for purposes of the FTCA. Therefore, in compliance with the FTCA, the United States removed the state proceeding to federal court on January 10, 2014, before a summons and complaint were ever filed, and moved to substitute itself as the sole defendant in the case. See 28 U.S.C. § 2679(d)(2).1 Pinilla thereafter voluntarily dismissed his claim so as to pursue the administrative remedies required by the FTCA.

Meanwhile, on January 8, 2014-approximately three and a half years after Erick's birth-Pinilla filed his administrative claim for medical malpractice, a step that generally starts a case for purposes of the FTCA's two-year statute of limitations. See 28 U.S.C. § 2401(b) (2012) ("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 . . . ."). The administrative claim was denied on September 16, 2014. Less than six months later, Pinilla filed his FTCA claim in federal court. See id. (stating that a civil action under...

To continue reading

FREE SIGN UP