Zander v. U.S.

• Decision Date: 02 February 2011
• Docket Number: Civil Action No. AW–09–2649.
• Citation: 786 F.Supp.2d 880
• Parties: Michele ZANDER, Plaintiff,v.UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Massachusetts

786 F.Supp.2d 880

Michele ZANDER, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. AW–09–2649.

United States District Court,D. Maryland,Southern Division.

Feb. 2, 2011.

Elijah Dale Adkins, III, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD, Andrea R. Bennett, Bennett and Associates, Atlanta, GA, for Plaintiff.Melanie L. Glickson, Maryland Office of the United States Attorney, Baltimore, MD, Debra R. Coletti, United States Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ALEXANDER WILLIAMS, JR., District Judge.

Pending before the Court is Defendant United States of America's Motion to Dismiss. (Doc. No. 13). The court has reviewed the entire record, as well as the pleadings and exhibits, with respect to the instant Motion. The issues have been fully briefed and no hearing is deemed necessary. See Loc. R. 105(6) (D.Md.2010). For the reasons stated more fully below, the Court DENIES Defendant's Motion to Dismiss. (Doc. Nos. 13).

I. FACTUAL AND PROCEDURAL BACKGROUND

The instant case arises from a series of events leading to the Plaintiff Michele Zander's permanent paralysis from the waist down. In August 1997, Plaintiff began to experience pain in her lower back and numbness in her legs. She sought treatment at the Family Practice Clinic at Maxwell Air Force Base in Alabama but found no relief for her symptoms after being referred to physical therapy. Plaintiff continued to have chronic weakness and pain. She returned to the Maxwell AFB clinic and was prescribed pain medication, to no avail. Her X-rays were negative and no other explanation for her symptoms was determined. Plaintiff requested a referral and was referred to an orthopedist at Maxwell AFB.

In September 1997, Plaintiff had a MRI of her upper body. The study demonstrated a defect known as an arteriovenous malformation (“AVM”) in her spine. Plaintiff alleges that she was not made aware of the AVM in her spine, nor was she provided treatment for it. Plaintiff avers that she was not told that she had this condition and was not advised to limit her activities, to seek further consultation, to undergo any surgery, or to take any other action. The only information provided to Plaintiff by the physician at Maxwell AFB was that she had two bulges in her back but no herniated disc. The physician told her it was normal to experience back pain at times. No notation of the AVM was made at this time in Plaintiff's records, Plaintiff alleges.

During the next three years, Plaintiff continued to be seen at the family practice clinic at Maxwell AFB for her chronic pain. She was continually advised by her healthcare providers at Maxwell AFB that there was no major problem. As a result, Plaintiff continued her active lifestyle unaware of any potential problems. By 2002, Plaintiff had moved with her husband to the Washington, D.C. area, and her care was assumed by the clinics at National Naval Medical Center (NNMC) in Bethesda, Maryland. It was in the last week of November 2002 that the events culminating in Plaintiff's injury took place.

On November 24, 2002, after using a leaf vacuum for several hours, Plaintiff began to experience back and leg pain and numbness. By November 26, 2002 the symptoms became worse. The next morning on November 27, Plaintiff went to the emergency room at NNMC, where she was given an injection to temporarily relieve the pain and was also given oral pain medication. On November 29, 2002, Plaintiff went back to the clinic at NNMC where she was prescribed more pain medication and was then sent home with instruction to return for an MRI if the numbness increased. At around 5:30 Plaintiff and her husband returned to the emergency room at NNMC. After attempts to send her home, Plaintiff prevailed upon medical personnel for an additional opinion and an MRI. On November 30, 2002, Plaintiff was admitted to the hospital at NNMC.

At approximately 2:00 a.m., an MRI was carried out. The earlier MRI that was conducted in 1997 at Maxwell AFB was reviewed and the presence of the AVM was noted on that earlier study. By this time, Plaintiff was experiencing numbness in her posterior, and difficulty with urination and bowel movements. On November 30, 2002 Plaintiff underwent a procedure known as an angiogram with embolization of the spinal cord AVM. At approximately 10:30 p.m. on November 30, 2002, Plaintiff experienced the onset of weakness in her lower body. Though the Physician returned to NNMC to carry out additional procedures on Plaintiff Mrs. Zander, by this point her lower body was becoming paralyzed due to injury to her spinal cord.

Pursuant to the Federal Tort Claims Act (FTCA), Plaintiff filed an administrative tort claim with the Navy and the Air force on November 23, 2004 and November 30, 2004, respectfully. Both claims were filed within two years of Plaintiff's injury and alleged negligence in the diagnosis, evaluation and treatment of her AVM, leading to her paralysis and related injuries. Plaintiff's FTCA claims were subsequently administratively denied by both the Air Force and the Navy on April 8, 2009. Plaintiff filed her complaint against the United States on October 8, 2009, almost seven years after the date of her injury. Defendant moves to dismiss this claim on the grounds that the claim was filed outside of Maryland's statute of repose.

II. STANDARD OF REVIEW

For a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may contend “that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). In this situation, “the facts alleged in the complaint are assumed to true and the plaintiff, in effect, is afforded the same procedural protection he would receive under Rule 12(b)(6) consideration.” Id. The complaint must consist of “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1954, 173 L.Ed.2d 868 (2009).

III. ANALYSISA. The Pending Motion to Dismiss for Lack of Subject Matter Jurisdiction

The FTCA is the only vehicle by which a Plaintiff may recover from the United States for certain torts committed by federal employees within the scope of their employment. However, pursuant to the FTCA, the United States may only be held liable to the same extent and manner as private individual would be held in the same position. Therefore, the FTCA provides a limited waiver of immunity. 28 U.S.C. § 2674.

The FTCA looks to the “law of the place where the act or omission occurred,” in order to assess the United States tort liability. 28 U.S.C. § 1346(b). Maryland, using lex loci delicti, requires that the substantive rights of a party be determined according to the law of the state where the injury occurred. Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983). The Fourth Circuit has held that the “the place of injury is the place where the injury was suffered, not where the wrongful act took place.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 511 (4th Cir.1986).

Defendant United States argues that Plaintiff must not only meet the requirements and statutes of limitations set by the FTCA in order to have subject matter jurisdiction, but that she must also comply with the substantive laws of Maryland when filing a medical malpractice claim, which she failed to do. See Doc. No. 13–1 at 13–14. As Plaintiff Michele Zander began to experience paralysis at NNMC in Bethesda, Maryland, the Court must look to the substantive law of Maryland for filing malpractice claims, detailed in Md.Code Ann., Cts. & Jud. Proc. § 5–109(a)(1). § 5–109(a)(1) states that “[An] action for damages for injury arising out of the rendering of or failure to render professional services by a health care provider ... shall be filed within the earlier of [five years of the time the injury was committed].” Defendant points this Court to Anderson v. United States, in which the court recently held that § 5–109(a)(1) is a statute of repose, making it a substantive, not procedural law. No. 08–3, 2010 WL 1346409 (D.Md. Mar. 30, 2010). Therefore, this provision must be taken into account when assessing the potential liability of the United States, in accordance to the FTCA. 28 U.S.C. § 1346(b), Defendant asserts. Defendant alleges that if the United States is liable to the same extent as a private actor as required by the FTCA, they would be immune from suit five years after the plaintiff suffered her injury, because the five-year statute of repose provides a substantive right to a defendant to be free from liability. See Anderson, 2010 WL 1346409, at *3–4.

As Plaintiff failed to file this suit within five years from the date of the injury, pursuant to the Maryland statute of repose, Defendant moves to dismiss the instant complaint for lack of subject matter jurisdiction. The Court will evaluate these arguments herein.

1. “Deemed Denied” Provision of FTCA

The FTCA sets out certain provisions that plaintiffs must follow or be forever barred from issuing a complaint. As mentioned in the Defendant's Motion to Dismiss, “A plaintiff may file a negligence action against the United States six months after she files an administrative tort claim, if the Agency has not made final disposition of the claim within that six month period.” See Doc. No. 13–1 at 12. If the plaintiff does not hear back from the administrative agency within six months of filing her claim, this silence is “deemed a final denial of the claim” and the Plaintiff is free to exercise the option to go forth and file suit against the United States in federal court. 28 U.S.C. § 2675(a). Def...