Santos ex rel. Beato v. U.S.

• Decision Date: 11 March 2009
• Docket Number: No. 07-4613.,07-4613.
• Citation: 559 F.3d 189
• Parties: Mercy N. SANTOS, a Minor by Jenny BEATO, her Parent and Natural Guardian, Appellant v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

559 F.3d 189

Mercy N. SANTOS, a Minor by Jenny BEATO, her Parent and Natural Guardian, Appellant v. UNITED STATES of America.

No. 07-4613.

United States Court of Appeals, Third Circuit.

Argued December 2, 2008.

Filed March 11, 2009.

David J. Foster (argued), Costopoulos, Foster & Fields, Lemoyne, PA, for Appellant.

Michael J. Butler, Office of the United States Attorney, Harrisburg, PA, Gregory G. Katsas, Acting Assistant Attorney General, Civil Division, Phyllis J. Pyles, Director, Torts Branch, James G. Touhey, Jr., Assistant Director, Torts Branch, Conor Kells (argued), Trial Attorney, Torts Branch, Civil Division, U.S. Department of Justice, Washington, D.C., for Appellee.

Before: AMBRO and GREENBERG, Circuit Judges, and O'NEILL,^* District Judge.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on an appeal by plaintiff Mercy Nicole Santos by Jenny Beato, her Parent and Natural Guardian, from an order of the District Court entered on November 30, 2007, granting summary judgment to defendant United States of America in this medical malpractice case under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. ("FTCA"). The District Court concluded that the FTCA's two-year statute of limitations barred Santos's claim, rejecting her contention that the running of the limitations period should be equitably tolled so that her action would be timely. Santos v. United States, 523 F.Supp.2d 435 (M.D.Pa.2007). Because we conclude that the statute of limitations should be equitably tolled, we will reverse the order of November 30, 2007, and will remand this matter to the District Court for further proceedings.

II. BACKGROUND

Mercy Nicole Santos was six years old when on November 20, 2002, her mother, Jenny Beato, took her to York Health Corporation's ("York Health")¹ pediatric clinic in York, Pennsylvania, because she had a swollen jaw and a fever.² A clinic physician diagnosed Santos as having tooth decay, prescribed an antibiotic, and referred her to York Health's dental clinic. Nevertheless, the swelling continued and her condition worsened. Accordingly, Santos, on November 27, 2002, returned to the pediatric clinic, where the personnel again referred her to the dental clinic and again prescribed an antibiotic. Santos then sought care at the York Health dental clinic, where a dentist extracted a decaying tooth in the belief that it created a small mass on Santos's lower jaw and was responsible for Santos's continuing fever. Yet when Santos returned to the dental clinic two days later for a follow-up appointment, the swelling and fever had not abated. A dentist examined her and told her to come back on December 2, 2002, which she did. Subsequently, on December 12 and December 18, 2002, she went to the pediatric clinic complaining of worsening neck pain and stiffness. The personnel there prescribed antibiotics and painkillers and again referred her to the dental clinic, where a dentist again observed her swelling and neck stiffness but made no further diagnosis.

On December 22, 2002, Santos's mother took her to the emergency room at York Hospital, a regional facility distinct from York Health, because her neck pain, swelling, and fever all had grown more severe. Personnel at the hospital performed a Computed Tomography scan, or CT scan, that revealed a deep neck-space infection extending from below Santos's jaw into her cervical spine. Santos had developed osteomyelitis, an infection of the bone and bone marrow, that had destroyed parts of her top two cervical vertebrae. After 19 days of surgery and other hospital treatments for the severe infection, and several months of wearing a cervical collar, Santos's top two vertebrae grew back fully fused together on the right side. This vertebrae fusion permanently impairs her movement, as she cannot turn her head to look over her shoulder, and the fusion likely will cause Santos to suffer from an accelerated degenerative disc disease in the vertebrae below the fused vertebrae.

Santos's mother retained counsel for her daughter, who investigated Santos's potential liability claim against York Health and its employees. Santos's counsel identified four persons he believed were the negligent healthcare workers who caused Santos's injury, a doctor, two dentists, and a physician assistant, and also identified their employer, York Health, an apparently private corporation. Thereafter, Santos's counsel performed a public records search on York Health, corresponded with York Health, obtained Santos's medical records, visited the clinic, and reviewed pertinent records onsite. To evaluate Santos's potential liability claim, her counsel retained a family practice expert, a dental expert, a professor of pediatric otolaryngology, and a board-certified spinal surgeon, all of whom prepared expert reports.

On May 25, 2005, about two years and five months after a physician at York Hospital diagnosed Santos with osteomyelitis, her counsel filed a malpractice action on her behalf in the Court of Common Pleas of York County, Pennsylvania, against the allegedly negligent parties, York Health and the four professional employees. Santos's counsel believed that notwithstanding Pennsylvania's two-year statute of limitations on malpractice actions set forth in 42 Pa. Cons.Stat. Ann. § 5524 (West 2004), her filing was timely because a Pennsylvania statute, 42 Pa. Cons.Stat. § 5533(b)(1)(i)-(ii) (West 2004), tolls the statute of limitations in a civil action brought on behalf of a minor until she reaches her majority at the age of 18 years. Undoubtedly, if the tolling statute had been applicable, his belief would have been correct.

Santos's investigations did not reveal, however, that for treatment purposes under the FTCA the allegedly negligent healthcare workers and their employer, York Health, all had been deemed employees of the United States pursuant to the Public Health Service Act, 42 U.S.C. § 201 et seq., as amended by the Federally Supported Health Centers Assistance Act of 1992, Pub.L. No. 102-501, 106 Stat. 3268 (1992). See Public Health Service Act, 42 U.S.C. § 233(g)-(n).³ This investigative failure was understandable as publicly available information did not reveal their federal status for malpractice purposes, though there was public information explaining that York Health received aid from, among numerous benefactors, the federal government, and the clinic did not appear to be a federal facility. The state-court defendants' federal status was critical because the FTCA's statute of limitations requires a malpractice claimant to bring an administrative claim with the applicable federal agency, here the Department of Health and Human Services, within two years after her cause of action accrues. Moreover, and as critical in this litigation, the FTCA does not include a tolling provision for minors comparable to that of Pennsylvania and many other states. 28 U.S.C. § 2401(b).

On September 2, 2005, as the FTCA provides, the Attorney General's designee certified that the state-court defendants were federal employees acting within the scope of their employment and removed the case to the District Court. 28 U.S.C. § 2679(d)(2). The Government then substituted the United States as the sole party defendant. Id. Santos and the Government thereafter stipulated to a voluntary dismissal of the removed action without prejudice so that Santos could bring an administrative claim as the FTCA requires. 28 U.S.C. § 2675(a).⁴

Santos did not challenge the removal of her case to the District Court or the substitution of parties and, accordingly, she filed the contemplated administrative claim. The Department of Health and Human Services, however, failed to take action on her claim for six months, and its inaction was deemed a denial of her claim. She then filed this suit in the District Court. After answering the complaint, the Government moved for judgment on the pleadings, or, in the alternative, for summary judgment, on the ground that the FTCA's two-year statute of limitations barred Santos's claim. On the proceedings on the motion, Santos acknowledged that she filed her claim in the state court more than two years after its accrual, but argued that the FTCA's statute of limitations should be equitably tolled so that her claim would be timely because she did not know that the allegedly negligent healthcare providers had been deemed federal employees. The District Court rejected Santos's tolling argument and found that her claim was untimely because in its view she had not exercised due diligence in inquiring into the federal status of York Health and the individual providers. Thus, the Court granted summary judgment to the United States. Santos, 523 F.Supp.2d at 436-37. Santos then filed a timely appeal.

III. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject-matter jurisdiction under the FTCA, 28 U.S.C. § 1346(b), and we exercise jurisdiction under 28 U.S.C. § 1291. Our standard of review of the District Court's order granting summary judgment is plenary, see Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir.2007), as is our review of the District Court's finding that Santos failed to file her action within the period the statute of limitations allowed. See King Vision Pay-Per-View, Corp. v. 898 Belmont, Inc., 366 F.3d 217, 220 (3d Cir.2004).

IV. DISCUSSION

A. The Federal Tort Claims Act

As she recognizes, Santos must seek her recovery by proceeding under the FTCA, 28 U.S.C. §§ 1346(b), 2671 et seq., a limited waiver of the sovereign immunity of the United States providing that:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

28 U.S.C. § 2674. To make a claim under the FTCA, a...