Santos v. U.S.

• Decision Date: 30 November 2007
• Docket Number: Civil No. 1:06-CV-1216.
• Citation: 523 F.Supp.2d 435
• Parties: Mercy Nicole SANTOS, a minor, by Jenny Beato, Her Parent and Natural Guardian, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

523 F.Supp.2d 435

Mercy Nicole SANTOS, a minor, by Jenny Beato, Her Parent and Natural Guardian, Plaintiff, v. UNITED STATES of America, Defendant.

Civil No. 1:06-CV-1216.

United States District Court, M.D. Pennsylvania.

November 30, 2007.

David J. Foster, Lemoyne, PA, for Plaintiff.

Mark E. Morrison, Martin C. Carlson, Michael J. Butler, Office of the United States Attorney, Harrisburg, PA, for Defendant.

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

Plaintiff, a minor, brings the instant suit pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1), alleging medical malpractice by health care providers at a federally-subsidized health care clinic who have been deemed federal employees subject to the FTCA. Plaintiff, under the mistaken belief that her health care providers were subject to state law, failed to file an administrative claim within two years as required by the FTCA.¹ Instead she filed suit in state court more than two years after the cause of action accrued, but within the time allowed by the Pennsylvania Minor's Tolling Statute, 42 Pa. Const. Stat. § 5533(b)(1)(i)-(ii). Before the court is Defendants' motion for judgment on the pleadings, or in the alternative, summary judgment (Doc. 21). The issue for this' court is whether the FTCA's two year statute of limitations should be equitably tolled because Plaintiff was unaware that her health care providers were federal employees. The parties have briefed the issue, and the motion is ripe for disposition. Because Plaintiff failed to exercise due diligence by inquiring into the status of her doctors, equitable tolling is not appropriate in this case. Therefore the court will grant Defendant's motion for summary judgment.

I. Background

The following facts are undisputed except where noted. On November 20, 2002, when Plaintiff was six years old, her mother brought her to the pediatric clinic of the York Health Corporation seeking treatment for a fever and swelling under the chin. Over the course of the next few weeks, Plaintiff was repeatedly treated by several dentists and doctors employed by the York Health Corporation. The treatment was unsuccessful and Plaintiff continued to experience neck pain, fever, swelling, and difficulty moving her neck throughout this period. On December 22, 2002, Plaintiff went to the emergency room at York Hospital with neck pain, facial swelling and high temperature. A CT scan revealed a prevertebral abscess in the retropharyngeal space with extension into the cervical spine, suggesting osteomyelitis of one of her cervical vertebrae. Surgical exploration revealed an abscess of dental origin extending into vertebrae C1-05 with osteomyelitis of C1 and C2.

On May 25, 2005, Plaintiffs mother filed a suit on behalf of Plaintiff in state court, alleging that Plaintiff was injured as a result of negligent treatment by the doctors and dentists at the York Health Clinic, namely the failure to diagnose and treat the infection in Plaintiffs neck area. In Pennsylvania, the general rule is that medical malpractice action must be filed two years after a cause of action accrues. 42 Pa. Const. Stat. § 5524. However, when an injured plaintiff is younger than eighteen, the limitations period is tolled until two years after the plaintiff's eighteenth birthday under the Pennsylvania Minor's Tolling Statute, 42 Pa. Const. Stat. § 5533(b)(1)(i)-(ii). Relying on this statute, Plaintiff filed suit in state court more than two years after her cause of action accrued, on December 22, 2002.

Four months after the state court suit was initiated, the U.S. Attorney for the Middle District of Pennsylvania certified that all the doctors involved in the case had been "deemed" federal employees pursuant to 28 U.S.C. § 2679(d)(2). Under the Federally Supported Health Centers Assistance Acts of 1992 and 1995, 42 U.S.C. § 233(g)-(n), certain employees of health centers receiving federal funding may apply to be deemed to be federal employees for the purpose of civil actions for damages.² Deemed employees who face malpractice claims enjoy the procedural and substantive protections of the FTCA, which include an administrative claims process within the Department of Health and Human Services, 28 U.S.C. § 2675(a), the substitution of the United States as the defendant in any lawsuit, 28 U.S.C. § 2679, and a strict two-year statute of limitations, 28 U.S.C. 2401(b). Additionally, the federal courts have exclusive jurisdiction over tort claims against deemed employees, so plaintiffs are barred from pursuing malpractice claims in state court. 28 U.S.C. 1346(b)(1). As a result, the case was removed to federal court and assigned docket number 05-CV-1792.

Plaintiff's attorney, David J. Foster, avers that he believed that the doctors at York Health Corporation were not federal employees subject to the FTCA. (Doc. 27-6.) Prior to filing the suit in state court, his firm obtained Plaintiffs medical records from York Health Corporation and that nothing in the medical records identified the clinic as a federal entity or the doctors as federal employees. Representatives of the York Health Corporation failed to disclose the entity's federal status in its correspondence with Foster and Plaintiff prior to the suit. Additionally, the York Health Corporation's address and its website do not mention the entity's federal status. Plaintiff only became aware of York Health Corporation's federal status after the suit had been filed in state court.

Pursuant to a stipulation entered by the United States on October 26, 2005, Plaintiff voluntarily dismissed the case to pursue an administrative complaint. As part of the stipulation, the United States agreed not to file a motion to dismiss on statute of limitations grounds if the claim was re-filed in federal district court following a denial of the administrative claim, but expressly reserved the right to raise the statute of limitations as an affirmative defense. On November 7, 2005, Plaintiff filed an administrative claim pursuant to the FTCA. Because no determination was made within six months, the claim was deemed denied pursuant to 28 U.S.C. § 2675(a).

On June 6, 2006, Plaintiff, by her mother, filed the instant claim against the United States pursuant to the FTCA, 28 U.S.C. § 1346(b)(1), alleging injuries as a result of negligent treatment by employees of the York Health Corporation between November 20 and December 22, 2002, but naming the United States as a defendant. (Doc. 1.)

Defendant filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) to dismiss the suit for lack of jurisdiction, or in the alternative, for summary judgment under Rule 56.³ (Doc. 21.) Defendant claims that Plaintiffs failure to file an administrative claim within the FTCA's two year statute of limitations bars the suit. The motion has been fully briefed and is ripe for disposition.

II. Legal Standard

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir.2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248, 106 S.Ct. 2505. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the nonmoving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D.Pa.1992).

Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. "`Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).

III. Discussion

Plaintiff claims that the statute of limitations for the Federal Tort Claims Act should be equitably tolled due to the fact that she was unaware of Defendants' federal status and mistakenly brought suit after the FTCA limitations period had already expired, but within the state limitations period. Because Plaintiff failed to exercise due diligence by inquiring into the status of her health care providers, the court will decline to equitably toll the limitations period for this claim.

Generally the United States is immune from suit in its own courts. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). However, the United States may waive its sovereign immunity and consent to be sued, in which case, "[t]he terms of its consent to be sued in any court define the court's jurisdiction to entertain the suit." Id. at 586, 61...