Opinion
EP-02-CA-580-PRM.
June 30, 2005
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On this day, the Court considered Defendant United States of America's "Motion for Summary Judgment," ("Def. Mot. for Summ. Judg.") filed on October 1, 2004, Plaintiff Nita Haynes-Johnson's "Response to the Motion for Summary Judgment of Defendant United States of America and Brief in Support," ("Pla. Resp.") filed on October 13, 2004, Defendant's "Reply Brief," ("Def. Reply") filed on October 15, 2004, and Plaintiff's "Supplement to Response to Motion for Summary Judgment," filed on October 18, 2004, in the above-captioned cause. After careful consideration, the Court is of the opinion that Defendant United States of America's Motion for Summary Judgment should be granted, for the reasons that follow.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is a Federal Tort Claims Act ("FTCA") medical malpractice action. In 1994, Nita Haynes, now Nita Haynes-Johnson, ("Haynes-Johnson") was 17 years old and pregnant with her first child, due April 30, 1994. On January 14, 1994, Haynes-Johnson had a prenatal visit and began a course of treatment at Blanchfield Army Community Hospital ("Blanchfield") in Fort Campbell, Kentucky. Haynes-Johnson's pregnancy was routine and uneventful until April 4, 1994, when medical personnel noted that she had rapid weight gain and possible pregnancy-induced hypertension. Haynes-Johnson was ordered to bed rest and was closely monitored.
During a prenatal visit on April 20, 1994 at the Blanchfield Army Community Hospital Clinic, Civilian Nurse Midwife Rita Finley determined that Haynes-Johnson had pregnancy-induced hypertension and ordered a nonstress test to monitor the baby's heartbeat. The test revealed variable decelerations in the baby's heartbeat, which are sometimes indicative of fetal stress. Finley referred Haynes-Johnson to the Labor and Delivery wing of Blanchfield Hospital, where Haynes-Johnson was further evaluated by Nurse Lori Newman. Newman performed an ultrasound and evaluation which (1) revealed potential intrauterine growth restriction or retardation, the possibility of a small-for-gestational-age baby, and oligohydramnios, (2) confirmed the variable decelerations and Haynes-Johnson's fluctuating hypertension, and (3) disclosed potential preeclampsia. Nurse Newman recommended that Haynes-Johnson be admitted to the hospital. Thereafter, Dr. Susan Dunlow examined Haynes-Johnson and subsequently admitted her to the hospital.
A "nonstress test" is a "test of fetal well-being that is performed by ultrasound monitoring of the increase in fetal heartbeat following fetal movement." Medline Plus, Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin/ mwmednlm?book=Medicalva=nonstress%20test. (" Merriam-Webster Medical Dictionary").
"Variable decelerations" refers to "transient fetal bradycardia [slowness of the heartbeat] usually denoting compression of the umbilical cord which may occur at any time in relation to a uterine contraction." PDR MEDICAL DICTIONARY 445 (1st ed. 1995).
"Oligohydramnios" refers to an "[a]bnormally small amount of amniotic fluid." F.A. DAVIS, TABER'S CYCLOPEDIC MEDICAL DICTIONARY 1158 (15th ed. 1985).
"Preeclampsia" is "a toxic condition developing in late pregnancy that is characterized by a sudden rise in blood pressure, excessive gain in weight, generalized edema [swelling], albuminuria [the presence of albumin/protein in the urine], severe headache, and visual disturbances[.]" Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin/ mwmednlm?book=Medicalva=preeclampsia.
A decision was then made to induce labor, and Haynes-Johnson was admitted to the Labor and Delivery Ward. Electronic fetal monitoring began the afternoon of April 20th, and the introduction of oxytocin began at 7:15 p.m. After hours of labor, at 11:30 a.m. on April 21st, Dr. Anne Morgan noted fetal bradycardia, despite attempts at preventive measures, and ordered the discontinuation of oxytocin. An emergency cesarian section was determined to be in order, and Haynes-Johnson was taken to the operating room. At 11:53 a.m., Talaya Jha'von Haynes ("Talaya") was delivered.
"Oxytocin" is "a . . . hormone that stimulates especially the contraction of uterine muscle and the secretion of milk. . . ." Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin/mwmednlm?book=Medicalva=oxytocin. The trade name for oxytocin is "Pitocin." DAVIS, TABER'S CYCLOPEDIC MEDICAL DICTIONARY at 1304.
"Bradycardia" refers to "slowness of the heartbeat, usually defined (by convention) as a rate under 60 beats per minute." PDR MEDICAL DICTIONARY at 230.
The newborn appeared floppy and dusky, and was apneic at birth. Talaya's Apgar score after being delivered was "0." Resuscitation efforts began and were ultimately successful. Her Apgar score was "2" five minutes after birth, and "7" ten minutes after birth. Talaya was placed on a ventilator. Shortly thereafter, Talaya exhibited signs of seizures, such as jerking, lip-smacking and eye-twitching. She was subsequently transferred to the neonatal intensive care unit of a civilian hospital, the Regional Medical Center, in Madisonville, Kentucky ("Madisonville"). Possible seizure activity was observed shortly after Talaya was admitted at Madisonville, and medication was administered to alleviate the seizures. After one week, an electroencephalogram of Talaya was performed and revealed no seizure activity. After a total of two weeks at Madisonville, Talaya was released and her mother took her home to Tennessee.
"Apneic" means "related to or suffering from apnea [the absence of breathing]." PDR MEDICAL DICTIONARY at 114.
"Apgar score" refers to "the evaluation of a newborn infant's physical status by assigning numerical values (0 to 2) to each of 5 criteria: 1) heart rate, 2) respiratory effort, 3) muscle tone, 4) response stimulation, and 5) skin color; a score of 8 to 10 indicates the best possible condition." PDR MEDICAL DICTIONARY at 1585.
It appears that upon discharge from Madisonville, Haynes-Johnson and Talaya went to Clarksville, Tennessee, where Haynes-Johnson lived with her parents.
Talaya subsequently began receiving medical treatment at the Kid's Care Cumberland Care Clinic ("Kid's Care Clinic") in Tennessee. Medical providers at the Kid's Care Clinic gave Talaya well-baby assessments at her two-week and two-month examinations. Def. Mot. for Summ. Judg., Ex. C, Summary of Medical Records; Pla. Resp., Ex. 4, Deposition of Nancy Trent ("Trent Depo."), at 6:15-20; 8:2-3, 15. At Talaya's four-month visit, an unidentified pediatric nurse expressed concern that "[w]hatever [Talaya] was supposed to be doing at four months, she wasn't doing it," meaning her development did not comport with her age. Pla. Resp., Ex. 1, Deposition of Haynes-Johnson ("Haynes-Johnson Depo."), at 112:13-14. At that point, no measures were taken by either medical personnel or Haynes-Johnson with regard to Talaya's apparent developmental difficulties. Talaya had an illness-related visit at five months of age, and a well-baby examination at six months of age, with no apparent discussion of Talaya's development. Def. Mot. for Summ. Judg., Ex. C, Summary of Medical Records.
On November 17, 1994, Haynes-Johnson brought seven-month old Talaya to the Kid's Care Clinic for treatment of a knot inside Talaya's mouth caused by the baby falling onto the tray of her infant swing. Pla. Resp., Ex. 4, Trent Depo., at 9:23-25, 10:1-3. Nurse Nancy Trent noticed that Talaya was very rigid, could not hold her torso up, and could not sit up even when supported. Id. at 10:10-14. Nurse Trent also listed Talaya's birth difficulties in her notes on the visit, including the fact that Talaya did not breathe at birth for five minutes and had neonatal seizures. Id. at 10:16-18. Nurse Trent's notes were based upon information provided by Haynes-Johnson, since Nurse Trent did not have access to Talaya's birth records or the records from Madisonville. Id. at 11:1-3. Nurse Trent then referred Talaya to Dr. Quentin Humberd ("Dr. Humberd") for further evaluation.
On November 21, 1994, Dr. Humberd examined Talaya. He performed a standard developmental screening test which revealed that Talaya had abnormal reflexes in her upper and lower extremities. Def. Mot. for Summ. Judg., Ex. F, Deposition of Quentin Humberd ("Humberd Depo."), at 9:4-5. Dr. Humberd also observed that Talaya had some mild spasticity in her legs and arms. Id. at 9:6. Talaya was unable to hold a small cube in her hand or transfer it between hands. Id. at 9:11-12,14-15. She also had poor head control. Id. at 9:11. Dr. Humberd also noted a preliminary abnormal neurologic finding in Talaya, called cortical thumbing. Id. 9:6-9. Dr. Humberd's overall assessment indicated that Talaya had dystonia. Def. Mot. for Summ. Judg., Ex. C, November 21, 1994 Report of Quentin Humberd. Future evaluations were to be conducted to rule out cerebral palsy. Id. Dr. Humberd referred Talaya to Tennessee's Early Intervention System ("TEIS") to facilitate obtaining occupational and physical therapy, and for purposes of data collection, before the next scheduled consultation with him. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 9:16-20. Dr. Humberd wanted to gather additional data to determine if Talaya's difficulties were static, progressive, or congenital. Id. at 10:21-25; 11:1-3.
"Spasticity" means "a spastic state or condition; especially: muscular hypertonicity [exhibition of excessive tone or tension] with increased tendon reflexes." Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin/ mwmednlm?book=Medicalva=spasticity.
"Dystonia" is "[a] state of abnormal (either hypo- or hyper-) tonicity [tension] in any of the tissues." PDR MEDICAL DICTIONARY at 536.
"Cerebral Palsy" is "a disability resulting from damage to the brain before, during, or shortly after birth and outwardly manifested by muscular incoordination and speech disturbances." Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin /mwmednlm?book=Medicalva=cerebral%20palsy.
TEIS is a state-funded program that assists parents in obtaining medical care for children, from birth to three years of age, with special needs by contracting with various medical providers for services that insurance does not cover. Def. Mot. for Summ. Judg., Ex. D, Deposition of Gay Lynn Westover ("Westover Depo."), at 13:1-9.
"Static" typically means "characterized by a lack of movement or change[.]" Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin/mwmednlm?book=Medicalva=static.
"Progressive" means "[a]dvancing, as a disease from bad to worse." DAVIS, TABER'S CYCLOPEDIC MEDICAL DICTIONARY at 1387.
"Congenital" means "[e]xisting at birth, referring to certain mental or physical traits, anomalies, malformations, diseases, etc. which may be either hereditary or due to an influence occurring during gestation up to the moment of birth." PDR MEDICAL DICTIONARY at 382.
Talaya was formally referred for TEIS intake on December 2, 1994, because of the possibility that she had cerebral palsy. Def. Mot. for Summ. Judg., Ex. D, Referral to TEIS Greater Nashville District. Sandy Self, a service coordinator for TEIS, performed the intake interview with Haynes-Johnson, filling out an intake form dated December 19, 1994. Def. Mot. for Summ. Judg., Ex. D, State of Tennessee Central Intake Form ("Intake Form"). Ms. Self filled in the form with information provided by Haynes-Johnson. Id. The intake form indicates that Talaya was referred to TEIS because of concerns about her development, that Talaya was not breathing when she was born, that she spent two weeks at Madisonville "on oxygen," and that Haynes-Johnson had a "C-Section because Talaya's heart rate dropped." Id.
Sandy Self passed away on July 18, 2001, and was therefore unavailable to the parties to give a deposition in this case.
On January 19, 1994, Susie Moler ("Moler"), an early interventionist with Progressive Directions, Inc., a state-funded TEIS subcontractor, conducted a developmental assessment of Talaya and thereafter met with Talaya and her family for an hour each week until June 27, 1996. Def. Mot. for Summ. Judg., Ex. D, Deposition of Susie Moler ("Moler Depo."), at 6:17; 8:14-24; 16:15-21, 24-25; 17:1-6. Talaya subsequently received an evaluation through TEIS that concluded she had "significant dystonia, developmental motor delays, and dystonic posturing." Def. Mot. for Summ. Judg., Ex. C, February 3, 1995 Report of Quentin Humberd ("Humberd Report").
On February 3, 1995, at an extensive follow-up examination at nine-months, Dr. Humberd determined that Talaya suffered from a static problem, the neurological term being static encephalopathy. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 12:3-5. This indicated an injury to the brain through non-specific measures, "which could be low oxygen. It could be a variety of things." Id. at 12:8-11. The term "static" meant that the injury happened at a point in time, as opposed to being an ongoing problem, such as a viral infection, that would be more accurately categorized as progressive encephalopathy. Id. at 12:13-16. Again, Haynes-Johnson was the source of information for Talaya's history at the February 3rd visit with Dr. Humberd. Id. at 11:6-7.
"Encephalopathy" refers to "any dysfunction of the brain." DAVIS, TABER'S CYCLOPEDIC MEDICAL DICTIONARY at 540.
At this visit, Haynes-Johnson indicated to Dr. Humberd that Talaya had breathing problems when she was born. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 13:4-6. Dr. Humberd discussed some of the risk factors that could have caused difficulties like those experienced by Talaya with Haynes-Johnson, including prematurity, head trauma, and that such difficulties occur "with children that suffer problems during the birth process[.]" Id. at 13:20-25; 14:1-2. Dr. Humberd talked to Haynes-Johnson about the fact that Talaya's problems were static. Id. at 14:2-3; 12:13-14.
Dr. Humberd ordered a CT scan to better define Talaya's problems and gave Haynes-Johnson a handout on cerebral palsy. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 14:3-5, 9-19. Although Dr. Humberd does not have a copy of the exact handout given to Haynes-Johnson, he recalls that the handout defined cerebral palsy in lay terms, listed a variety of causes and treatments, and included a reading list concerning support to enable Haynes-Johnson to talk to other families that had children with cerebral palsy. Id. at 14:12-22, 25; 15:1-3. Dr. Humberd also indicated to Haynes-Johnson his belief that Talaya possibly had brain damage and suffered from cerebral palsy. Id. at 15:19-25. Dr. Humberd had ruled out genetic issues as the cause of Talaya's developmental delays, as well as stroke, fetal infections such as meningitis, congenital defects, and severe prematurity. Id. at 16:3-5; 35:12-13,25; 36:1-7, 15-18. This left the most likely cause "going back again to the history . . . an association at [the] time that child was born that she had to have [an] emergency C-section." Id. at 16:8-11. Dr. Humberd gave this information to Haynes-Johnson as a differential diagnosis of Talaya's condition. Id. at 16:19-21. He presented it to Haynes-Johnson as "one of the potential causes of why a child can have this kind of problem at seven months of age, and sometimes that diagnosis can be delayed." Id. at 16:21-24.
A "CT scan" also known as a "CAT scan" is "a sectional view of the body constructed by computed tomography [radiography in which a three-dimensional image of a body structure is constructed by computer. . . .]" Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin /mwmednlm?book=Medicalva=CAT%20scan.
Dr. Humberd also stated that there was no evidence that Talaya's injuries resulted from head trauma separate and apart from birth. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., 38:20-22.
"Differential diagnosis" refers to "the distinguishing of a disease or condition from others presenting similar symptoms." Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin /mwmednlm?book=Medicalva=differential%20diagnosis.
Dr. Humberd, however, did not specifically tell Haynes-Johnson what caused Talaya's cerebral palsy. Def. Mot. for Summ, Judg., Ex. F, Humberd Depo., at 29:12-14. Neither did he definitively diagnose Talaya with cerebral palsy at the February 3rd visit, because, he stated, at only seven-months of age it would have been very difficult to assign such a diagnosis to Talaya. Id. at 30:17-25; 31:1-7. Instead, Dr. Humberd's overall assessment was that Talaya suffered from static encephalopathy and, most likely, cerebral palsy. Def. Mot. for Summ. Judg., Ex. C, Humberd Report. Dr. Humberd likely communicated to Haynes-Johnson that the causes of cerebral palsy are difficult to figure out and that he did not know what caused Talaya's particular type of cerebral palsy. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 41:23-25; 42:1-3. Eventually, Talaya was given a definitive diagnosis of cerebral palsy, most likely in April 1995, when Talaya was twelve-months old. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 68:17-18.
Dr. Humberd stated that in almost all of his patients that exhibit difficulties like Talaya's, at twelve-months of age the abnormalities are considered fixed. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 32:4-6. At this age, it is his policy to assign a diagnosis of cerebral palsy. Id. at 32:6-8. The summary of Talaya's medical records also suggests that in April 1995, her condition started to be listed as "CP" for cerebral palsy, rather than "dystonia" or "dystonia vs. CP" as in prior listings, suggesting a definitive diagnosis of cerebral palsy by that time. Def. Mot. for Summ. Judg., Ex. C, Summary of Medical Records.
In anticipation of receiving physical therapy services for Talaya through TEIS at Gateway Health Systems, formerly Clarksville Memorial Hospital, Haynes-Johnson filled out an intake form for the hospital on March 5, 1995. Def. Mot. for Summ. Judg., Ex. D, March 5, 1995 Child's Case History Form ("Case History"), at 423, 427. Therein, Haynes-Johnson indicated that there was a delay in Talaya's breathing, and that the baby required oxygen at birth. Id. at 424. When the questionnaire asked whether Talaya had been given a diagnosis, Haynes-Johnson's written response indicated a "mild case of CP [cerebral palsy]." Id. at 426. In response to the question of what Talaya's diagnosis meant to Haynes-Johnson, she wrote "[s]he's a little slow." Id. When prompted to describe her child's problem, Haynes-Johnson wrote "[s]he is not preforming [sic] what a 10 month old should be doing." Id.
Some interlineations are present in the case history form that do not appear to be in Haynes-Johnson's handwriting that state that Talaya was "intubated for O2" and that she was "intubated for a little over [a] week." Def. Mot. for Summ. Judg., Ex. D, Case History, at 424.
On March 13, 1995, Gay Lynn Westover ("Westover"), a physical therapist at the former Clarksville Memorial Hospital, conducted an initial evaluation of Talaya and interviewed Haynes-Johnson in order to commence physical therapy. Def. Mot. for Summ. Judg., Ex. D, Westover Depo, at 23:21-25; 24:2-3, 17-23; 25:3-12. At this meeting, Haynes-Johnson stated that her pregnancy was normal but that during labor the baby's heart rate decreased. Id. at 25:25; 26:1-3. Haynes-Johnson also indicated that the baby had problems breathing, was put into an incubator, and was taken to Madisonville for two weeks. Id. at 26:4-6. Haynes-Johnson and Westover also discussed the fact that at Talaya's three-month checkup, there was already a noticeable decrease in Talaya's development. Id. at 26:17-19.
Contemporaneous with Westover's provision of physical therapy services to Talaya from March 1995 to June 1996, Susie Moler, a TEIS-contracted interventionist, conducted weekly visits with Talaya and Haynes-Johnson at the family home. Def. Mot. for Summ. Judg., Ex. E, Moler Depo., at 6:17; 8:14-24; 16:15-21, 24-25; 17:1-6. Between commencement of Moler's services in January 1995, and discontinuation of those services on June 27, 1996, Moler recalls a conversation she had with Haynes-Johnson at her home, concerning Talaya's progress. Id. at 57:6-19; 63:7-12, 14-16. During this conversation, Haynes-Johnson indicated to Moler that she thought that Talaya's injuries "might have happened at birth." Id. at 28:15-21. During the same, or possibly in a subsequent, conversation Haynes-Johnson told Moler that "they might have to sue the Army." Id. at 30:1-11.
In March 1996, Haynes-Johnson and Verdie Johnson were married in Tennessee. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 58:13-19. During the summer of 1996, El Paso County, Texas, became Verdie Johnson's work location. Id. at 25:21-25; 26:1-5. Haynes-Johnson and Talaya accompanied Verdie to El Paso. Id. at 27:2-4. In El Paso, Talaya continued to receive occupational and physical therapy, and was also seen by various physicians and neurologists. Id. at 61:17-24.
Verdie Johnson is an employee of the Army.
On June 6, 1997, Haynes-Johnson gave birth to her second daughter, Tatyana, at Beaumont Army Medical Center in El Paso. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 45:5-6; 51:18-22. Haynes-Johnson's pregnancy proceeded without complication. Id. at 45:7-15. However, Tatyana, like Talaya, was delivered via emergency C-section after medical personnel noted a drop in Tatyana's heart rate during labor. Id. at 48:9-19. Unlike her older sister, Tatyana has no developmental difficulties and is regarded as "absolutely normal." Id. at 53:8-9.
While in El Paso, sometime during the year 2000, Haynes-Johnson viewed a commercial on television advertising a law firm. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 9:6-18; 76:20-25. The subject-matter of the television commercial pertained to possible reasons for a child having cerebral palsy. Id. at 9:8-11. Coupled with Haynes-Johnson's subjective observation of Talaya's condition and her personal conclusion that Talaya's cerebral palsy was not improving, the television commercial prompted Haynes-Johnson to seek legal advice concerning Talaya's injuries and the care Haynes-Johnson received at Blanchfield. Id. at 9:19-25; 10:1-4. Haynes-Johnson subsequently filed an administrative claim regarding Talaya's injuries with the Federal Government on May 10, 2001. Haynes-Johnson then filed suit, individually and on behalf of Talaya, against the United States in federal court on December 27, 2002, seeking damages under the FTCA resulting from the alleged negligence (medical malpractice) of personnel at Blanchfield.
Though Haynes-Johnson does not recall what particular law firm was advertised, her current counsel, Morgan Weisbrod, was not affiliated with the advertisement. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 127:18-25; 128:1-20.
Haynes-Johnson indicated in her deposition that the television commercial caused her to connect Talaya's injuries to the birth process, but she did not indicate the precise content of the television commercial or what statement or statements within the advertisement caused her to connect Talaya's cerebral palsy with birth problems. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 10:5-8; 77:14-23.
It is unclear from the record which federal agency received and processed Haynes-Johnson's administrative claim. Also, it does not appear that this unidentified agency made a determination on Haynes-Johnson's claim prior to the filing of Haynes-Johnson's lawsuit. Additionally, the date of the filing of the administrative claim was asserted by the Government. Def. Mot. for Summ. Judg., at 3. Because Haynes-Johnson has not disputed the accuracy of the date, the Court assumes the date is correct.
As of the present date, Talaya suffers from hypotonic cerebral palsy, seizure disorder, global developmental delay, and spastic quadriplegia. Pla. Resp., at 2.
"Hypotonic" means "having deficient tone or tension." Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin /mwmednlm?book=Medicalva=hypotonic.
"Global" means "being comprehensive, all-inclusive, or complete." Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin/mwmednlm?book= Medicalva=global.
"Spastic Quadriplegia" refers to "paralysis [of all four limbs] with tonic spasm of the affected muscles and with increased tendon reflexes." Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin/ mwmednlm?book=Medicalva=spastic%20paralysis.
On October 1, 2004, the Government filed a Motion for Summary Judgment, alleging that Haynes-Johnson failed to file her administrative claim within the applicable FTCA statute of limitations, rendering her current action against the United States time-barred.
II. STANDARD OF REVIEW
A. Civil Actions Under the Federal Tort Claims Act.
"Absent a waiver, sovereign immunity shields the Federal Government . . . from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). The Federal Tort Claims Act, comprising in pertinent part 28 U.S.C. §§ 1346, 2401, and 2671-2680, "was designed primarily to remove the sovereign immunity of the United States from suits in tort and . . . to render the Government liable in tort as an individual would be under like circumstances." Richards v. United States, 369 U.S. 1, 6 (1962). Through the FTCA, "the [G]overnment has generally waived its sovereign immunity from tort liability for the negligent or wrongful acts or omission of its agents who act within the scope of their employment." Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994).
Pursuant to Title 28 U.S.C. § 1346(b), the United States is liable "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C.S. § 1346(b)(1) (2005).
Limitations and exceptions apply to causes of action under the FTCA, including certain time restrictions on filing complaints against the Government. Suits against the Government under the FTCA must be brought in strict compliance with its limitation provisions. Reynolds v. United States, 748 F.2d 291, 293 (5th Cir. 1984) (citations omitted); see also Childers v. United States, 442 F.2d 1299, 1303 (5th Cir. 1971) (agreeing that suits under the FTCA must be brought in exact compliance with the terms of the Government's consent to waive sovereign immunity) (citation omitted).
The FTCA limitations relevant to the instant case are those enumerated in 28 U.S.C. § 2675(a) and § 2401(b). Section 2675(a) states, "[a]n action shall not be instituted upon a claim against the United States for money damages . . . unless the claimant shall have first presented the claim to the appropriate Federal agency. . . ." 28 U.S.C.S. § 2675(a). Furthermore, § 2401(b) states, "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. . . ." 28 U.S.C.S. § 2401(b). Therefore, a potential plaintiff must file a claim with the relevant administrative agency within two years of the claim's accrual. See Adams v. United States, 615 F.2d 284, 288 (5th Cir. 1980) ("The section 2675 requirement of filing a claim before instituting suit sought to bring the claimants' allegations to the immediate attention of the relevant agency.") (citation omitted). If no administrative claim is filed within that time period, a plaintiff's lawsuit against the Government may not commence in federal court and is forever barred.
In this case, Haynes-Johnson filed an administrative claim with the Federal Government on May 10, 2001. Pursuant to § 2401(b), Haynes-Johnson's claim must have accrued no earlier than May 9, 1999. Otherwise, Haynes-Johnson's lawsuit is time-barred, mandating its dismissal.
B. Is Compliance with § 2401(b) a Jurisdictional Requirement?
On November 5, 2003, the Court issued an amended scheduling order setting a deadline of August 16, 2004 for filing of all dispositive motions, including motions for summary judgment. The Government filed its Motion for Summary Judgment on October 1, 2004, more than two months after the deadline set in the amended scheduling order, without seeking leave of Court. Under this circumstance, the Court would typically strike the Government's Motion as untimely. However, the Government moves for summary judgment by asserting a failure on the part of Haynes-Johnson to comport with the § 2401(b) statute of limitations for FTCA claims.
Although statutes of limitation are normally affirmative defenses that can be procedurally defaulted or waived, the FTCA time limitations have been widely categorized as jurisdictional, meaning that a plaintiff's failure to comply deprives a federal court of subject-matter jurisdiction over her claims. Houston v. U.S. Postal Serv., 823 F.2d 896, 902 (5th Cir. 1987); see also Estate of Trentadue ex. rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005); Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003); Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999); Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995). Of course, subject-matter jurisdiction cannot be waived by a party. Bolduc v. United States, 402 F.3d 50, 54 (1st Cir. 2005). Thus, if the FTCA time limitations are, in fact, jurisdictional prerequisites to filing suit, the Court should properly consider the Government's Motion. Importantly, Haynes-Johnson has never argued against the jurisdictional nature of § 2401(b). Because the parties do not disagree on this point, the Court will assume that compliance with § 2401(b) is a jurisdictional requirement, and will, therefore, consider the Government's Motion for Summary Judgment despite its tardiness. C. Is a Rule 56 Summary Judgment Motion the Proper Vehicle for Evaluating the Government's Claim that § 2401(b) Bars Haynes-Johnson's Action?
The Court notes that Perez v. United States stated that the jurisdictional nature of § 2401(b) was an open question in the Fifth Circuit due to the possible application of equitable tolling to the FTCA statute of limitations in light of Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). Perez v. United States, 167 F.3d 913, 915 (5th Cir. 1999). Three circuit courts of appeal have held that Irwin renders the FTCA statute of limitations non-jurisdictional and, therefore, a waivable affirmative defense. Hughes v. United States, 263 F.3d 272, 278 (3d Cir. 2001); Glarner v. United States, 30 F.3d 697, 701 n. 4 (6th Cir. 1994); Schmidt v. United States, 933 F.2d 639, 640 (8th Cir. 1991). But see McCoy v. United States, 264 F.3d 792, 794 (8th Cir. 2001) (holding that the FTCA statute of limitations is a jurisdictional provision); Walker v. United States, 176 F.3d 437, 438 (8th Cir. 1999) (same). Notwithstanding Irwin, several other courts have analyzed the possibility of subjecting § 2401(b) to equitable tolling, while reaffirming the jurisdictional nature of the statute. Skwira, 344 F.3d at 71 n. 8; Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2002); Barnes v. United States, No. 01-3202-KHV, 2004 U.S. Dist. LEXIS 19455, at *14 (D. Kan. Sep. 27, 2004); Heinrich v. Sweet, 44 F. Supp. 2d 408, 412-13 (D. Mass. 1999); Willis v. United States, 879 F. Supp. 889, 893 (C.D. Ill. 1994). Additionally, Fifth Circuit cases before and after Perez, and well after Irwin, have regarded compliance with § 2401 as a jurisdictional prerequisite to suit under the FTCA. Waggoner v. United States, 95 Fed. Appx. 69, 71 (5th Cir. 2004) (unpublished opinion); Ramming v. United States, 281 F.3d 158, 165 (5th Cir. 2001) (an FTCA case stating "[l]imitations periods in statutes waiving sovereign immunity are jurisdictional. . . .") (citing Houston, 823 F.2d at 896); Flory v. United States, 138 F.3d 157, 159 (5th Cir. 1998); Johnston v. United States, 85 F.3d 217, 218 n. 2 (5th Cir. 1996). The Court, therefore, will treat § 2401(b) as a jurisdictional provision.
Tied into the question of whether the requirements of § 2401(b) are jurisdictional prerequisites to an FTCA suit in federal court, is the question of what procedural vehicle is properly employed to evaluate compliance with § 2401(b). Here, the Government moves for summary judgment under Federal Rule of Civil Procedure 56. This is a common method of asserting an FTCA statute of limitations defense. Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986). However, the "common" method does not necessarily equate with the "correct" method. See id. ("[T]he practice, however common, is not consistent with Rule 12(b).") (citation omitted).
The standard applicable to a Rule 56 summary judgment motion is quite familiar. The party moving for summary judgment must demonstrate both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (citations omitted). Once the absence of a genuine issue of material fact has been demonstrated, the non-movant "must go beyond the pleadings and designate specific facts showing there is a genuine issue for trial." Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Additionally, "[a]ll facts and inferences must be viewed in the light most favorable to the nonmoving party." Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003) (citation omitted).
However, because the Government essentially challenges the Court's subject-matter jurisdiction by asserting a statute of limitations defense, it is not completely certain whether utilizing the general summary judgment standard is appropriate. Use of the standard presents no difficulty if the Court finds there is no genuine issue of material fact and the significance of the undisputed facts entitles the Government to judgment as a matter of law. However, because non-compliance with § 2401(b) deprives a court of subject-matter jurisdiction over an FTCA claim, it is the converse summary judgment situation that is conceptually problematic. Crawford v. United States illustrates the difficulty in applying the summary judgment standard to an FTCA statute of limitations defense:
"The purpose of summary judgment is to determine whether a trial can be averted. If the party moving for summary judgment fails to demonstrate that there is no triable issue, the case proceeds to trial. . . . But no case can properly go to trial if the court is not satisfied that it has jurisdiction. The fact that the summary judgment proceeding may not resolve a jurisdictional issue definitively is no ground for assuming jurisdiction and proceeding to the trial. . . . [T]he upshot must be a decision by the district court on jurisdiction — not a decision that there is or is not enough evidence to have a trial on the question."Crawford, 796 F.2d at 928-29.
In a case where compliance with § 2401(b) is the basis of a summary judgment motion, once a movant shifts the burden to the non-movant, it is not clear what the non-movant must demonstrate to defeat summary judgment. It is plainly not enough to show a factual dispute concerning whether a claim comports with the FTCA statute of limitations. If this were the case, a court would proceed to trial still unsure whether it had subject-matter jurisdiction over the action. At some point prior to trial, a court must conclusively decide the statute of limitations question. Furthermore, the plaintiff typically bears the burden of showing that a federal court has subject-matter jurisdiction over its claims. Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citation omitted). It is not certain whether this is indeed the burden a non-movant plaintiff must overcome after burden-shifting occurs pursuant to a defendant's motion for summary judgment. Some cases seem to answer this inquiry in the affirmative. See Drazan v. United States, 762 F.2d 56, 60 (7th Cir. 1985) ("the burden of establishing an exception to the [FTCA] statute of limitations is on the plaintiff"); Glover v. United States, 111 F. Supp. 2d 190, 192 (E.D.N.Y. 2000) ("The burden is on the plaintiff to plead and prove compliance with § 2401(b).") (citation omitted).
In the instant case, the potential methodological problem is avoided because there are no significant disputes as to the material jurisdictional facts at issue and because the Court ultimately determines that the Government is entitled to judgment as a matter of law. Also, whatever reservation the Court may have in proceeding under Rule 56, the Fifth Circuit has implicitly approved use of this standard in FTCA cases where § 2401(b) is at issue. MacMillan v. United States, 46 F.3d 377, 380 (5th Cir. 1995) (affirming a district court's grant of summary judgment in favor of the Government on the basis of § 2401(b) in a birth injury FTCA action). Therefore, the Court will employ the legal standard set forth in Rule 56 to evaluate the Government's Motion for Summary Judgment, notwithstanding the above-mentioned complexities. D. Section 2401(b) and the Discovery Rule.
In future FTCA cases where the statute of limitations is at issue, the Government may wish to consider filing a Rule 12(b)(1) motion, factually challenging subject-matter jurisdiction. Under this Rule, a court may still consider evidence outside the pleadings, as with a Rule 56 summary judgment motion, in order to "satisfy itself as to the existence of power to hear the case." Mortensen v. First Fed. Sav. Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Proceeding under Rule 12(b)(1) appears more appropriate for deciding the jurisdictional issue and presents a clear delineation of the burden borne by a plaintiff under the Rule to prove a court has subject-matter jurisdiction over an action. Hunter v. United States, No. 3:CV-00-0036, 2000 U.S. Dist. LEXIS 20206, at *11 (M.D. Pa. Dec. 15, 2000) (In a factual challenge to subject-matter jurisdiction under Rule 12(b)(1), "the burden of proof is on the plaintiff to show that the court possesses jurisdiction").
Utilization of the Rule 56 standard includes the conventional burden-shifting pattern articulated in Little, requiring a plaintiff to put forth competent evidence showing a genuine issue of material fact for trial. Even though Haynes-Johnson's burden may constitute affirmatively proving that her claim falls within the time limitation of § 2401(b), rather than the more lenient standard that there be only a dispute of material fact concerning whether her claim is timely, there is no harm in proceeding under the lesser standard. For if Haynes-Johnson cannot show even a dispute of fact concerning the timeliness of her claim, she would fall far short of affirmatively proving her claim is timely, and, hence, that the Court has jurisdiction over her claim. Crawford, 796 F.2d at 929 (noting that the plaintiff bore the burden of establishing he was within an exception to the statute of limitations, despite the district court proceeding under the less strict Rule 56 standard. "[I]f the judge was right that there wasn't even enough . . . to create a triable issue, even more clearly did [the plaintiff] fail . . . to carry his burden of proving that the district court had jurisdiction."). As will be discussed infra, there is no real dispute about the facts of the case, only the appropriate legal conclusion that should be drawn from the facts. Under either the Rule 56 or Rule 12(b)(1) standard, the Government is entitled to judgment in its favor.
Section 2401(b) bars a tort action against the United States unless the claim is first presented to the appropriate federal agency "within two years after such claim accrues." United States v. Kubrick, 444 U.S. 111, 113 (1979) (citing § 2401(b)). However, the statute does not explain when a claim "accrues." Johnston, 85 F.3d at 219. The general rule under the FTCA is that a tort action accrues at the time of a plaintiff's injury. Id. at 120; Cascone v. United States, 370 F.3d 95, 103 (1st Cir. 2004); Herrera-Diaz v. United States, 845 F.2d 1534, 1536 (9th Cir. 1988). In FTCA medical malpractice cases, however, where "the injury or its cause may not be manifested to the plaintiff until many years after the event, the tort action does not accrue, for statute of limitations purposes, until the plaintiff is put on notice of the wrong." Waits v. United States, 611 F.2d 550, 552 (5th Cir. 1980) (internal quotations and citation omitted). Hence, the Supreme Court, in Kubrick, adopted a "discovery rule" for claim accrual in FTCA medical malpractice cases. The two-year statute of limitations under § 2401(b) does not begin for a medical malpractice claim until the plaintiff has "knowledge of the factual predicate for a malpractice claim, i.e. the fact of his injury [and] its cause." Harrison v. United States, 708 F.2d 1023, 1027 (5th Cir. 1983) (internal quotations and citations omitted). Stated differently, "the statute of limitations period does not begin to run until after the patient discovers or in the exercise of reasonable diligence should discover his injury and its cause." MacMillan, 46 F.3d at 381 (internal quotations and citations omitted). A plaintiff need not know the legal or medical significance of an act or injury, Id., or that the injury was "negligently inflicted," in order for the claim to accrue. Kubrick, 444 U.S. at 123.
"Instead, the statute of limitations begins to run when the plaintiff has knowledge of facts that would lead a reasonable person (a) to conclude that there was a causal connection between the treatment and injury or (b) to seek professional advice, and then with that advice, to conclude that there was a causal connection between the treatment and injury." MacMillan, 46 F.3d at 381 (internal quotations and citation omitted). The reason for activation of the statute at the point of knowledge of injury and its probable cause is that "[a] plaintiff . . . armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community." Kubrick, 444 U.S. at 123. Not requiring a plaintiff to inquire promptly in that circumstance "would undermine the purpose of the limitations statute[.]" Id.
Notably, under the FTCA, the statute of limitations is not tolled "during the minority of the putative plaintiff; rather `[her] parent's knowledge of the injuries is imputed to [her].'" MacMillan, 46 F.3d at 381 (citation omitted); see also McCall v. United States, 310 F.3d 984, 988 (7th Cir. 2002) (holding that "the FTCA's statute of limitations is not tolled during the period of a putative plaintiff's minority"); Robbins v. United States, 624 F.2d 971, 972 (10th Cir. 1980) ("It is well established, however, that a claimant's minority does not toll the running of the statute of limitations under the Federal Tort Claims Act."). The child or her representative must file a written claim with the appropriate federal agency within two years of the FTCA claim's accrual. Zavala v. United States, 876 F.2d 780, 782 (9th Cir. 1989). Thus, "[p]arents must file a[n] [administrative] claim on behalf of their minor child" and "a child is bound by [her] parents' failure to file a claim. . . ." Id. at 783.
Furthermore, "subjective factors such as trust, youth and naivete are irrelevant in determining whether [a plaintiff] fulfilled" her duty to inquire and cannot justify inaction. Mendez v. United States, 732 F. Supp. 414, 424 (S.D.N.Y. 1990) (internal quotations and citation omitted); Cragin v. United States, 684 F. Supp. 746, 754 (D. Me. 1988), aff'd sub. nom. Cragin v. U.S. Dep't of the Navy, 873 F.2d 1433 (1st Cir. 1989); see also Arvayo v. United States, 766 F.2d 1416, 1422 (10th Cir. 1985) (determining that the district court erred in excusing plaintiff parents' failure to inquire because the parents were young and "wholly trusting of authority," particularly those in the medical profession. "[T]he [district] court applied a subjective standard rather than an objective standard to what the [plaintiffs'] duty of inquiry was under the circumstances; the question whether the [plaintiffs] were `reasonably diligent' is of course an objective one.").
III. ANALYSIS
The following analysis examines when Haynes-Johnson had knowledge of Talaya's injury and if or when she had knowledge, or should have had knowledge, of the cause of those injuries. Finally, the Court will determine whether Haynes-Johnson's administrative claim was timely in light of the legal significance of the facts adduced as to Talaya's injuries and their cause.
A. When did Haynes-Johnson Have Knowledge of Talaya's Injury?
There is no dispute that Haynes-Johnson was aware of several problems occurring during and immediately after Talaya's birth. Pla. Resp. at 6. Haynes-Johnson knew that Talaya's heart rate dropped during labor, that Talaya was not breathing at birth, and that Talaya had spent a few weeks in the intensive care unit in Madisonville. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 73:11-24. Likely in December 1994, but no later than March 5, 1995, Haynes-Johnson knew, and had been informed by health care providers, that Talaya had been diagnosed with "mild CP [cerebral palsy]." Id. at 68:9-25; 69:1-13. Haynes-Johnson certainly understood that Talaya had developmental delays and was upset that Talaya had a disability. Id. at 73:1-10. As was discussed supra, the definitive diagnosis of permanent cerebral palsy likely came when Talaya was twelve months old, that is, no later than April 1995. Thus, Haynes-Johnson's subjective belief that Talaya had mild cerebral palsy intersected with a firm diagnosis of cerebral palsy in April 1995. It is at this time that Haynes-Johnson could arguably have had "knowledge" of Talaya's injury.
B. Was there an Affirmative Duty for Haynes-Johnson to Inquire into the Cause of Talaya's Cerebral Palsy, and, if so, was the Duty Fulfilled?
The question that is the focus of the briefing by the parties is whether a reasonable person would know, or should have known, enough facts about the cause of Talaya's cerebral palsy and developmental delays to trigger the running of the statute of limitations. Haynes-Johnson steadfastly denies knowing anything about the cause of Talaya's cerebral palsy and other maladies, prior to her actions taken in response to the law firm advertisement in 2000. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 8:24-25; 9:1-2; 10:5-8. The Court assumes arguendo, for the moment, that this is true. The conclusion, however, begs a question: why would Haynes-Johnson have no knowledge about the cause?
Haynes-Johnson maintains that no doctor or medical provider, at any time, ever told her about the cause of Talaya's injuries. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 10:20-23. This presents a troubling question: why had she never asked about the cause of Talaya's injuries? The following portion of Haynes-Johnson's deposition testimony is particularly illustrative:
[Defense Counsel]: Did you ask what the causes of cerebral palsy were to anyone —
[Haynes-Johnson]: No.
[Defense Counsel]: — at any time?
[Haynes-Johnson]: No.
[Defense Counsel]: . . . You didn't ask anybody in 1994 [the year Haynes-Johnson was told Talaya had mild cerebral palsy] what it was that might be the cause?
[Haynes-Johnson]: No.
[Defense Counsel]: Did you do any research then about what might be the cause?Id. at 74:12-25.
[Haynes-Johnson]: No.
[Defense Counsel]: . . . Was there any point between the time you learned about your daughter having mild [cerebral palsy], whether it be December of '94 or March of '95, was there any point in time between that event and the time you saw the commercial on television when you ever asked anyone what the causes of cerebral palsy for your daughter might be?
[Haynes-Johnson]: No.
[Defense Counsel]: Did you ever do any research into that issue?
[Haynes-Johnson]: No.
[Defense Counsel]: Did you ever read about that?
[Haynes-Johnson]: No.
[Defense Counsel]: Did it ever concern you, were you ever curious about the explanation?
[Haynes-Johnson]: No.
Id. at 75:2-25.
[Defense Counsel]: Did you ever talk with any family members about what might be the cause between the two events I've been talking about?
[Haynes-Johnson]: No.
[Defense Counsel]: . . . You never talked with any friends about what the cause of that [cerebral palsy] might be.
[Haynes-Johnson]: No.
Id. at 76:2-6, 16-19.
Many cases impose a duty on an FTCA plaintiff to inquire into the unknown cause of a known injury. In re Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1443 (D.C. Cir. 1989) ("[A] plaintiff has a duty to inquire into the unknown cause of a known injury."); Sexton v. United States, 832 F.2d 629, 637 (D.C. Cir. 1987); see also Osborn v. United States, 918 F.2d 724, 732 (8th Cir. 1991); Arvayo, 766 F.2d at 1421 (noting that a potential FTCA plaintiff has the duty to inquire into both an injury's causation and potential negligence); Lewis v. United States, 290 F. Supp. 2d 1, 4 (D.D.C. 2003) ("Once a plaintiff is aware of an injury done, she is under an obligation to undertake an inquiry into the cause of that injury.") (citations omitted); Mendez, 732 F. Supp. at 422 ("[T]he statute of limitations begins to run when the plaintiff knows of the injury and its cause, or has a duty to inquire into the cause.") (citation omitted); Cragin, 684 F. Supp. at 753. Thus, where a plaintiff has knowledge of an injury, as is the case here, the claimant is required to inquire with reasonable or due diligence as to the cause of the injury in order to toll the running of the two-year statute of limitations until they are given a correct answer about the cause of an injury. Motley v. United States, 295 F.3d 820, 823 (8th Cir. 2002); Cragin, 684 F. Supp. at 753.
For example, in In re Swine Flu, a plaintiff contracted a severe disease in close temporal proximity to a Swine Flu inoculation performed by the Government, and subsequently filed suit under the FTCA. In re Swine Flu, 880 F.2d at 1441. The D.C. Circuit held that the plaintiff, faced with the onset of the disease, was charged with inquiring into the cause of the disease. Id. at 1443. The plaintiff fulfilled this duty by "repeatedly inquir[ing] of her treating physicians as to the cause of her ailment[,]" where none of her medical providers could provide an answer. Id. The statute of limitations was tolled until the plaintiff was accurately informed about the cause of her injury. Id.
Likewise, in Osborn, the plaintiffs' daughter received a vaccination from Air Force medical personnel that purportedly caused the child to have seizures and brain damage. Osborn, 918 F.2d at 725. After holding that an FTCA plaintiff must exercise reasonable diligence in inquiring into the cause of an injury, the appeals court found that the record reflected that plaintiffs "diligently inquired as to the cause of [their child's] seizures and that [their] efforts were unavailing." Id. at 732. Their child's pediatrician repeatedly told the plaintiffs that he "could find no reason for [the child's] problems," and multiple pediatric neurologists could not assign a cause for the seizures and brain damage. Id. at 732-33. The statute of limitations was tolled until another doctor informed the plaintiffs that administration of the vaccine by the Government was improper. Id. at 726-27, 734.
Under the standard explained above, Haynes-Johnson's conduct falls considerably short of reasonable or due diligence. By Haynes-Johnson's own admission, until her viewing of the television advertisement, five years after the latest date knowledge of Talaya's injury could have been acquired, Haynes-Johnson made absolutely no inquiries into the cause of Talaya's cerebral palsy. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 75:5-12.
One may ask whether it is fair to impose an additional inquiry burden on a plaintiff other than Kubrick's holding that knowledge of injury and cause trigger a duty of inquiry into the possibility of negligence. In fact, a relatively small number of cases directly address the issue and explicitly hold that there is a duty to inquire into cause. However, it is not because the reasoning in In re Swine Flu, Osborn, and other cases is unsound or unorthodox. Rather, it is quite rare that in a medical malpractice case, moreover in a birth injury case, a plaintiff and/or parent faced with a serious injury, having no information as to what caused the injury, fails to investigate or ask any questions whatsoever concerning the cause of an injury for several years. See, e.g., Mendez, 732 F. Supp. at 425 ("We are troubled by the fact that plaintiff never took an affirmative approach to learn about her grandson's condition; her interactions with [the child's] doctors were limited to routine visits to the hospital clinic or in response to acute medical problems experienced by [the child]. . . .").
What most frequently occurs is that a plaintiff and/or parent faced with a severe injury makes attempts to figure out what has caused the injury, usually by obtaining medical services with an aim of asking questions of medical providers in order to ascertain a possible cause of injury. Inquiring into cause in this manner produces three possible results. The first possibility is that medical providers give the patient/parent a correct diagnosis of the cause of an injury. See MacMillan, 46 F.3d at 379-80, 382 (an FTCA birth injury case where the plaintiff's inquiries into her child's possible learning disabilities prompted a report by a school psychologist indicating "it appears likely that [the child] suffered anoxia at birth and probably sustained some neurological damage as a result." The Fifth Circuit determined that the plaintiff's claim accrued when she received the accurate diagnosis from the psychologist's report.). This falls within the holding of Kubrick, and constitutes claim accrual which starts the statute of limitations.
This by no means suggests that only a definitive or certain cause of injury must be assessed to start the statute of limitations, as will be discussed infra.
The second possibility is that the patient/parent is given an incorrect diagnosis or otherwise erroneous information related to the cause of an injury. In Colleen v. United States, after the "rough birth" of the plaintiffs' child, doctors assured the parents that the child would be fine despite grand mal seizures. 843 F.2d 329, 330-31 (9th Cir. 1988). When the child's breathing slowed after birth, the doctors indicated that it was not cause for alarm. Id. The appeals court held that the FTCA statute of limitations was tolled until the next year, when the plaintiffs were informed by another medical provider that injuries at birth resulted in the child's developmental disabilities. Id. In Jastremski v. United States, the plaintiff's child, delivered in a breech position due to the administration of Pitocin, suffered a series of seizures after birth. 737 F.2d 666, 668 (7th Cir. 1984). Tests administered to uncover the cause of the seizures indicated no abnormality. Id. The child thereafter developed an abnormal gait. Id. Doctors diagnosed the gait as an orthopedic problem, rather than a neurological problem. Id. A friend of the plaintiff, a neurologist, later diagnosed the child with cerebral palsy. Id. The correct diagnosis started the statute of limitations. Id. at 670. In Hance v. United States, the plaintiff unexpectedly bore twins. 773 F. Supp. 551, 553 (W.D.N.Y. 1991). The second twin was born twenty minutes after the first twin. Id. Medical personnel told the plaintiff that an unexpected multiple birth was not unusual. Id. at 555. At four months of age, the plaintiff noticed that the second twin was developing more slowly than the first. Id. at 553. Medical providers responded to the plaintiffs concerns by telling her that second twins develop more slowly than first twins and that the child would "catch up." Id. at 555. At six months of age, the second twin was diagnosed with global developmental delay. Id. at 554. Again, the plaintiff was told by medical providers that the child would "catch up." Hance, 773 F. Supp. at 555. The court held that the assurances of medical personnel tolled the statute of limitations. Id. at 558.
"Gait" means "a manner of walking or moving on foot." Merriam-Webster Medical Dictionary, at http://www2.merriam-webster.com/cgi-bin/mwmednlm?book=Medicalva=gait.
As demonstrated above, because a reasonable person may rely on the assurances of competent medical personnel, a plaintiff given an incorrect assessment of the cause of an injury could not be said to have known, or have been expected to know, the actual correct cause of an injury. Winter v. United States, 244 F.3d 1088, 1091 (9th Cir. 2001). In these instances, the statute of limitations is tolled until a plaintiff receives a correct diagnosis.
Finally, it may be the case that medical personnel respond to a plaintiff's inquiries by communicating an inability to determine any cause of the injury. Harrison, 708 F.2d at 1024-25, 1026 (the FTCA statute of limitations was tolled for ten years because the source of the plaintiff's headaches, numbness, and loss of memory could not be diagnosed despite the efforts of numerous physicians during that time period); Gould v. United States, 684 F. Supp. 508, 510, 512-13 (N.D. Ill. 1988) (After the plaintiff's son was born with neurological and behavioral problems, the plaintiff took him to five doctors in eight years; no doctor could assign a cause for the child's injuries, even where the plaintiff brought her son's medical records to some of the visits. The FTCA statute of limitations was tolled under such circumstances, until a cause was assigned to the injuries). Where trained medical personnel cannot attribute a cause to an injury, a lay plaintiff is not expected to have knowledge of the cause either. Winter, 244 F.3d at 1091-92; Chamness v. United States, 835 F.2d 1350, 1353 (11th Cir. 1988); Rosales, 824 F.2d 799, 805 (9th Cir. 1987). In these instances, the uncertainty about cause tolls the statute of limitations until the plaintiff is given an accurate diagnosis. Nicolazzo v. United States, 786 F.2d 454, 457 (1st Cir. 1986).
In this case, Haynes-Johnson contends that the Government has disclaimed any negligence on the part of medical providers, such that any inquiries into the possibility of a cause of action against the Government would have proven fruitless. Pla. Resp. at 4. However, the perceived futility of inquiring into the cause of an injury is irrelevant — a plaintiff has the burden and must diligently inquire into the cause of a known injury or lose the benefit of the discovery rule. See Osborn, 918 F.2d at 732 (citing In re Swine Flu, 880 F.2d at 1443, for the proposition that "an injured plaintiff cannot claim the benefit of the discovery rule simply by waiting passively for the cause of injury to be revealed"); Cragin, 684 F. Supp. at 754-55 ("[I]t is the duty to inquire, and not the perceived ineffectiveness of the inquiry, that sets the statute of limitations running.").
Furthermore, ignorance due to a lack of diligence does not toll the FTCA statute of limitations. Chamness, 835 F.2d at 1353; Gess v. United States, 909 F. Supp. 1426, 1439 (M.D. Ala. 1995) (citation omitted). While Haynes-Johnson focuses on her assertion that no medical provider affirmatively and unequivocally told her about the cause of Talaya's injury, the FTCA does not impose a duty of disclosure on the part of medical personnel. Arvayo, 766 F.2d at 1422 (rejecting a district court's implicit imposition of a duty of disclosure on the part of physicians in place of a duty of inquiry on the part of plaintiffs); Cragin, 684 F. Supp. at 755. Instead, the onus of inquiry falls squarely on an FTCA plaintiff. Sexton, 832 F.2d at 636 (stating that § 2401(b) clearly places inquiry burdens on plaintiffs). A plaintiff cannot passively wait to be informed about the cause of an injury. Bradley v. United States, 951 F.2d 268, 271 (10th Cir. 1991). If this were the rule, an indefinite period of time could pass before a claim accrues. The resulting uncertainty in claim accrual would undermine the very purpose of statutes of limitations, i.e., facilitating prompt presentation of claims before memories fade and evidence is lost. Bradley, 951 F.2d at 271; Lee v. United States, 485 F. Supp. 883, 885 (E.D.N.Y. 1980) (citation omitted). Furthermore, allowing an unqualified wait for serendipitous circumstances to inform plaintiffs of an injury's cause would reward those that asked no questions and made no inquiries about their medical treatment over those who diligently investigated the circumstances of their injury. This would be completely contrary to one of the central purposes of Kubrick and § 2401(b), which explicitly place inquiry burdens on potential plaintiffs. Sexton, 832 F.2d at 636; Doe v. United States, 280 F. Supp. 2d 459, 464 (M.D.N.C. 2003) (noting that FTCA cause of action accrues on a plaintiff's inquiry notice) (citation omitted).
There is no dispute of fact that Haynes-Johnson was informed of Talaya's injury no later than April 1995 and made no inquiries into the cause of Talaya's injuries until 2000. Consequently, the Court concludes, as a matter of law, that Haynes-Johnson failed to fulfill her resulting duty to diligently inquire into the cause of Talaya's cerebral palsy. Therefore, Haynes-Johnson cannot claim further benefit under the discovery rule past 1995 by asserting she had no knowledge of the cause of Talaya's cerebral palsy. Accordingly, Haynes-Johnson's claim accrued in April 1995 and the statute of limitations expired in April 1997. Because Haynes-Johnson filed an administrative claim four years later, on May 10, 2001, she failed to comply with § 2401(b). Haynes-Johnson's claim is time-barred and must be dismissed.
C. Did Haynes-Johnson Know, or Should She Have Known, of Talaya's Injury and its Cause Two Years or More Prior to the Filing of her Administrative Claim?
Alternatively, even if the Court found that Haynes-Johnson had no duty to inquire into cause, the Court is of the opinion that a reasonable person in Haynes-Johnson position would have been in possession of enough facts to start the statute of limitations more than two years before Haynes-Johnson filed her administrative claim.
As discussed supra, Haynes-Johnson had knowledge of Talaya's injury no later than April 1995, when medical providers made a definitive diagnosis of Talaya's cerebral palsy. Before the injury was definite, however, Haynes-Johnson was already sufficiently on notice as to the "most likely" cause of possible injury. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 16:8-24. On February 3, 1995, Dr. Humberd had an extensive visit with Talaya and Haynes-Johnson concerning Talaya's developmental difficulties. During this visit, Dr. Humberd diagnosed Talaya with static encephalopathy, essentially a brain injury that occurred at a point in time, and stated that Talaya, most likely, had cerebral palsy. Dr. Humberd discussed with Haynes-Johnson the possibility that Talaya had brain damage and cerebral palsy. Id. at 15:22-25; 16:1-2. During his discussion with Haynes-Johnson, Dr. Humberd informed her that risk factors for Talaya's apparent injuries were prematurity, head trauma, and that the difficulties occur "with children that suffer problems during the birth process[.]" Id. at 13:20-25.
Dr. Humberd informed Haynes-Johnson that they could rule out genetic issues, stroke, fetal infections, congenital defects, and severe prematurity. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 37: 20-25; 38:22; 39:1-12, 14-15. Dr. Humberd then gave a differential diagnosis to Haynes-Johnson that one of the "potential causes" of Talaya's problems was an association at the time the child was born that Haynes-Johnson had to have an emergency C-section. Id. at 16:8-11, 19-24. At the time of the visit with Dr. Humberd, Haynes-Johnson had certainly been aware of the difficulties surrounding Talaya's birth and Talaya's transfer to Madisonville. The Court finds that a reasonable person, knowing this information, would have had enough facts to lead them to seek professional advice concerning the propriety of medical treatment and the possibility of negligence, when presented with a diagnosis of injury in April 1995. Thus, the Court concludes that by April 1995, Haynes-Johnson should have known enough facts about the cause of Talaya's cerebral palsy to start the running of the statute of limitations.
Haynes-Johnson contends that she did not have enough facts related to cause to start the limitations time period for several reasons. The Court will discuss each of them in turn.
1. Is the Claim's Accrual Affected Because Knowledge of Cause Precedes Definitive Knowledge of Injury?
First, Haynes-Johnson points out that her discussion with Dr. Humberd commenced before a final diagnosis of Talaya's injury was made. Pla. Resp. at 9. Apparently, Haynes-Johnson argues that she could not be put on notice of the possible cause of an injury not yet diagnosed. Although the typical chronology of an FTCA medical malpractice case is that a plaintiff suffers a severe injury and subsequently obtains information related to the cause of an injury, knowledge of injury is not a prerequisite to knowledge of cause. For example, a patient could be well-aware that they are receiving substandard or improper care or that something has gone awry during medical treatment, but may have no manifestation of any injury for some time. In that case, without an injury or damage there is no viable claim for negligence and no reason to compel a plaintiff to file what would be a meritless lawsuit. If a diagnosis of injury is later made, there is no justification for further tolling the statute of limitations until the plaintiff discovers the probable cause of the injury, as the plaintiff already has knowledge of the likely cause.
Thus, in instances where the plaintiff is made aware of irregularities or possible mistakes made in medical treatment before a diagnosis of injury, when injury is finally attributed, the knowledge of its cause should be imputed to a plaintiff. The claim should, therefore, accrue at the time the injury is diagnosed, when knowledge of injury and cause are contemporaneous. Such are the circumstances in the present case. Dr. Humberd told Haynes-Johnson of the possibility that Talaya suffered from brain damage and cerebral palsy, but could not definitively diagnose Talaya with cerebral palsy because of Talaya's age. Dr. Humberd also told Haynes-Johnson that a potential cause of Talaya's problems, whether or not the difficulties ultimately turned out to be cerebral palsy, was an association between the time the child was born and the performance of an emergency C-section. When medical personnel finally did make a firm diagnosis of cerebral palsy, just two months later, Haynes-Johnson possessed enough facts about injury and cause to prompt a reasonable person to seek advice in the medical or legal community as to fault. In any event, the § 2401(b) statute of limitations period began no later than April 1995.
2. Did Dr. Humberd Give Haynes-Johnson Equivocal Information Such that the Limitations Period Should be Tolled?
Haynes-Johnson argues that the information provided by Dr. Humberd in 1995 was insufficient to start the statute of limitations. She further contends that far from putting Haynes-Johnson on notice of the possible cause of Talaya's cerebral palsy, Dr. Humberd instead told Haynes-Johnson that there was no way to determine what caused Talaya's injuries. Pla. Resp. at 8. It is true that Dr. Humberd recollects giving Haynes-Johnson a patient education handout on cerebral palsy produced by McKesson Clinical Reference Systems. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 23:3-25; Pla. Resp., Ex. 3, Cerebral Palsy Handout. It is also true that the handout discussed many different possible causes of cerebral palsy and stated that the causes of cerebral palsy are often difficult to figure out and may never be known. Id. at 25:12-17; 36:23-25; 37:1-5; Pla. Resp., Ex. 3, Cerebral Palsy Handout, at 1.
Dr. Humberd could not produce an exact copy of the handout he gave to Haynes-Johnson because the handout has since been updated. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 24:1-11. However, the current version of the handout is identical in all respects to the 1994 version given to Haynes-Johnson except for its increased emphasis on genetic events as a cause of cerebral palsy. Id. at 25:5-11.
Aside from the fact that Haynes-Johnson has no recollection of her interactions with Dr. Humberd, the handout appears to have been merely a generalized explanation of cerebral palsy and its possible causes. Dr. Humberd discussed much of what the handout mentioned concerning causes of cerebral palsy with Haynes-Johnson. Even though the handout discussed many possible causes for cerebral palsy, in Talaya's specific case, at the Februrary 3, 1995 visit, Dr. Humberd ruled out every cause stated in the handout including, genetic events, fetal infection such as meningitis, congenital defects, severe prematurity, stroke, and head trauma unrelated to birth, and discussed this with Haynes-Johnson. Def. Mot. for Summ. Judg., Ex. F, Humberd Depo., at 37: 20-25; 38:22; 39:1-12, 14-15. The only potential cause mentioned by Dr. Humberd, that was not ruled out, was his differential diagnosis related to an association between the time Talaya was born and the emergency C-section. The contents of the general cerebral palsy handout cannot displace the specifically tailored information given to Haynes-Johnson by Dr. Humberd. Any reliance by Haynes-Johnson on the general cerebral palsy handout contrary to the specific explanations of Talaya's treating physician would not constitute reasonable reliance. See Pla. Resp., Ex. 3, Cerebral Palsy Handout, at 4 ("The information is intended to inform and educate and is not a replacement for medical evaluation, advice, diagnosis or treatment by a healthcare professional.").
Because Dr. Humberd ruled out genetic events as a cause of Talaya's cerebral palsy in 1995 and discussed this with Haynes-Johnson, any subjective belief after that date by Haynes-Johnson that Talaya's cerebral palsy was genetic would be unreasonable. See Pla. Resp. at 7 ("[T]hough [Haynes-Johnson] had no understanding of . . . the connection between the birth trauma and cerebral palsy, if she had any understanding it was that the cause of the cerebral palsy may well have been genetic.").
Further, Dr. Humberd probably told Haynes-Johnson that he did not know what caused Talaya's particular type of cerebral palsy. This, however, is not dispositive of the issue. The cause of an injury need not be stated in fixed or certain terms to start the statute of limitations. Nemmers v. United States, 795 F.2d 628, 631 (7th Cir. 1986) ("[W]hat the reasonable [person] had to know was not a certain cause . . . but a potential cause." "The putative plaintiff need not know that the suspicious event is more likely than not the cause [of the injury]."). The limitations time period has commenced based on a medical professional's expression of probable, potential, or possible causes of an injury. MacMillan, 46 F.3d at 381 (a psychologist's report stating it was likely that plaintiff's child suffered a lack of oxygen at birth and probable that there was resulting brain injury); Gess, 909 F. Supp. at 1437 (stating that an FTCA claim accrues when the plaintiff discovers the injury and its probable cause); Gould, 684 F. Supp. at 511 (the plaintiff had sufficient notice of cause when a doctor issued a report that her child's neurological condition was "certainly consistent with possible perinatal difficulties or infectious illness . . . though precise etiology is impossible to determine." The court held that "the statute [of limitations] begins to run when a reasonable person would know enough to prompt a deeper inquiry that would reveal a potential cause.") (citation omitted).
However, no evidence supports the assertion in Haynes-Johnson's responsive pleading that Dr. Humberd told her there was no way to determine the cause of Talaya's injuries.
Haynes-Johnson seems to argue that in order for her to have had sufficient knowledge of cause from the information received from Dr. Humberd, she needed to be informed of the connection between cerebral palsy and negligence of the healthcare providers or cerebral palsy and asphyxia [lack of oxygen]. Pla. Resp. at 8. The first contention was specifically rejected in Kubrick. Kubrick, 444 U.S. at 123 (holding that claim accrual does not await awareness that an injury was negligently inflicted).
The second argument essentially states that what was required was notice of a medical reason or cause for the possible injury. However, the assignment of a medical cause to an injury may or may not be sufficient to provide notice of cause within the meaning of Kubrick. See Arvayo, 766 F.2d at 1420 (noting that knowledge of bare medical cause of an injury is insufficient to start the statute of limitations in cases involving failures to diagnose, treat, or warn plaintiffs). The gravamen of notice of cause is whether the plaintiff is given notice of who inflicted the injury, or whether information is provided to a plaintiff that the injury may be attributable to some act of the Government. See Kubrick, 444 U.S. at 122 (noting that a plaintiff need only be in possession of the "critical facts" that he has been hurt and who has inflicted the injury for a claim to accrue); Kerstetter v. United States, 57 F.3d 362, 365 (4th Cir. 1995) (stating that it should make no difference when a plaintiff learns exactly what went wrong during a medical operation, "[s]o long as the plaintiff knows "the critical fact" of "who has inflicted the injury" he can act to protect his rights by inquiring whether the injury was inflicted negligently"); Price v. United States, 775 F.2d 1491, 1493 (11th Cir. 1985) ("Once the plaintiff discovers that the injury is probably attributable to some act of those who treated her, there is no longer any reason to toll the statute of limitations."). The precise medical cause of injury may not be uncovered until discovery commences, or may not ever be surmisable. Kerstetter, 57 F.3d at 365. Consequently, assigning a precise medical cause for an injury is not necessary for providing notice of cause within the meaning of Kubrick.
In the instant case, Dr. Humberd could not give a precise medical cause for Talaya's apparent injuries. However, he did give a potential cause. While this potential cause did not explain exactly how Talaya's injuries came about, i.e., asphyxia, improper administration of Pitocin, etc., it did indirectly identify who could have been responsible for the injury, however it came about, by noting the possible association with the time Talaya was born and Haynes-Johnson's emergency C-section. Haynes-Johnson was, of course, aware of who treated her during her C-section — namely, members of the medical staff at Blanchfield in Kentucky. The Court finds that a reasonable person in possession of the above facts would have delved deeper into what was known to be the potential cause of Talaya's injuries.
As previously discussed, it may indeed be accurate to state that Dr. Humberd did not know what caused Talaya's cerebral palsy and that he communicated this to Haynes-Johnson, just as the doctor in the Gould case did not know the etiology of the child's injury in that case. Nevertheless, Dr. Humberd did discuss a potential cause with Haynes-Johnson of an association between the time her child was born and the performance of an emergency C-section. This put Haynes-Johnson on notice of the possibility that those who performed the C-section played some role in Talaya's injuries. As the only possibly viable cause given to Haynes-Johnson, the Court concludes that, once injury was definitively diagnosed, this information would lead a reasonable person to delve deeper into the potential cause, and inquire, within the medical and legal community, into the possibility of a cause of action. Again, the Court concludes that the § 2401(b) time period began in April 1995.
3. Do Haynes-Johnson's Subjective Characteristics Affect Claim Accrual?
Plaintiff's Response to the Motion for Summary Judgment seems to suggest that Haynes-Johnson's youth during and after Talaya's birth should have some effect on accrual of the cause of action in this case. See Pla. Resp. at 6, 10 ("Mrs. Johnson was barely 18 when her first child, Talaya Haynes was born." "[T]he United States argues that Mrs. Johnson herself, only 18 at the time, had enough information to figure out this causal connection."). To the contrary, youth is irrelevant in determining whether a reasonable person would have sought professional advice as to negligence based on the facts possessed by Haynes-Johnson. Arvayo, 766 F.2d at 1422; Mendez, 732 F. Supp. at 424. The standard for claim accrual in Kubrick is an objective test. Herrera-Diaz, 845 F.2d at 1537. Therefore subjective characteristics of the plaintiff, such as youth, are inappropriate considerations in determining whether a plaintiff's actions were objectively reasonable. Cragin, 684 F. Supp. at 754. 4. Does Haynes-Johnson's Belief that Talaya's Condition Would Improve Toll Claim Accrual?
Any suggestion that lack of sophistication affects claim accrual also fails as an inappropriate subjective consideration. See e.g., Pla. Resp. at 6 ("[Haynes-Johnson] also did not know what any of the medical terms those [medical] records used to describe the connection mean.").
Haynes-Johnson argues that her belief that Talaya had mild cerebral palsy and her expectation that Talaya would get better with treatment should affect the time of claim accrual. Pla. Resp. at 6-7. Haynes-Johnson's responsive pleading states that she had been consistently told that Talaya's cerebral palsy was mild and had been led to believe by many healthcare providers that Talaya could well grow out of mild cerebral palsy. Id. at 13. However, the record is devoid of evidence that any medical provider, at any time, told Haynes-Johnson that Talaya's mild cerebral palsy would improve with treatment. Haynes-Johnson appears to have drawn this conclusion based completely on her own subjective opinion and/or belief, rather than on the assurances of medical personnel. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 78:19-25; 79:1-8.
Furthermore, belief that an injury is only temporary is irrelevant with regard to the time of claim accrual. Robbins, 624 F.2d at 973. "[A] plaintiff need not realize or appreciate the full extent of his or her injury . . . as the statute runs even though the eventual damage [from an injury] is uncertain, incalculable or unknown." Gess, 909 F. Supp. at 1438. Thus, Haynes-Johnson's unsupported subjective belief that Talaya's cerebral palsy was temporary, or would improve with treatment, does not toll the FTCA statute of limitations.
5. Do the Circumstances of Tatyana's Birth Affect Claim Accrual?
Haynes-Johnson asserts that the circumstances surrounding the birth of Tatyana, Haynes-Johnson's second child, should delay accrual of her FTCA claim. Like Talaya, Tatyana's heart rate dropped while Haynes-Johnson was in labor. Although no one told Haynes-Johnson that Tatyana had stopped breathing, Tatyana was also delivered by emergency C-section, but has since developed normally. Haynes-Johnson argues that this gave her good reason not to associate traumatic birth with Talaya's cerebral palsy. Notwithstanding the fact that the Court has already determined that Haynes-Johnson's claim accrued in April 1995, the Court determines that the circumstances surrounding the birth of Tatyana, in 1997, would not delay claim accrual even had the birth happened prior to April 1995.
The Court fails to see how having two children born under similar precarious circumstances, in two different parts of the country, with treatment by two different groups of medical providers, with the result of one normal child and one brain damaged child, could ever assuage any reasonable parent's concerns about the cause of the brain damaged child's condition. Instead, the diametrically-opposed results could only reasonably result in more, not less, questions — perhaps not of the likely effects of traumatic or complicated birth, but certainly of the propriety of the care received from providers who delivered and treated the brain-damaged child. Thus, the Court concludes that Haynes-Johnson's knowledge of the circumstances of Tatyana's birth could not reasonably result in a delay of claim accrual, or otherwise toll the statute of limitations.
6. What is the Significance of Haynes-Johnson's Fortuitous Viewing of the Law Firm Television Commercial?
Haynes-Johnson asserts that her FTCA claim accrued sometime in the year 2000, when she viewed a law firm's television commercial that "[stated] if your child has cerebral palsy this might be the reason." Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 9:6-11. This television commercial prompted Haynes-Johnson to call a lawyer, and she subsequently contacted her current counsel. Haynes-Johnson also states that the first time she suspected that Talaya's condition was related to her birth, was when she viewed the television commercial. Id. at 10:5-8.
Haynes-Johnson also stated that her personal conclusion that Talaya's cerebral palsy was not improving also contributed to her decision to contact a lawyer. As discussed supra, Haynes-Johnson's belief that Talaya's condition would improve or was only temporary cannot justify tolling of the statute of limitations. Thus, this subsection deals only with the legal significance of the television commercial itself.
"[C]ourts have not been hesitant to measure [claim] accrual from the time knowledge of possible causation was obtained under fortuitous circumstances." Hance, 773 F. Supp. at 558; see also Nemmers v. United States, 870 F.2d 426, 428 (7th Cir. 1989) (affirming a district court's ruling that an FTCA claim accrued when the plaintiff parents read a newspaper article about a child with neurological problems, similar to those experienced by their child, caused by negligent treatment at the time of delivery); Chamness, 835 F.2d at 1353 (reversing the district court's summary judgment on the basis that plaintiff's FTCA claim was time-barred; fact questions still existed as to whether the plaintiff exercised due diligence in inquiring into cause, tolling the limitations time period until a chance viewing of the television show "20/20," where the program's subject was contraindication of use of a drug that was administered to the plaintiff during childbirth); Jastremski, 737 F.2d at 668, 670 (holding that a coincidental social visit to an FTCA plaintiff's home by a neurologist, where he indicated that the plaintiff's injured child might have cerebral palsy, started the statute of limitations); Beck v. United States, No. 86 C 10134, 1987 U.S. Dist. LEXIS 8902, at *3-4, *17-18 (N.D. Ill. Sep. 14, 1987) (holding plaintiffs' claim stemming from child's brain damage due to a DPT vaccine accrued when the plaintiffs viewed a segment of "20/20" that documented a causal connection between DPT vaccines and brain damage).
The troubling aspect of Haynes-Johnson's contention that claim accrual occurred at the time the television commercial aired is not that she asserts accrual occurred by happenstance. It is that the television commercial did not convey any new information to Haynes-Johnson. In cases like Chamness, Nemmers, and Beck, the resources and skill of investigative reporting from newspaper journalists and news-magazine broadcasts conveyed what was previously undiscovered and unpublicized information. In Jastremski and Hance, it was the expertise of a medical or legal professional during chance visits with plaintiffs that conveyed new information to the respective plaintiffs about their children's injuries. In both groups of cases, there was an affirmative provision of new information.
Here, Haynes-Johnson identifies very little about what the television commercial stated and even less about why it prompted her to retain counsel. From the evidence in the record, the television commercial did not appear to say anything about the circumstances of birth and its connection to cerebral palsy. Thus, the television commercial lacks legal significance in the context of claim accrual, because it did not constitute affirmative information regarding the cause of Talaya's cerebral palsy.
More importantly, because no new information was conveyed, Haynes-Johnson possessed the same set of facts to reach the conclusion that Talaya's cerebral palsy had some connection to her birth in 1995, as she did in 2000 when she viewed the television commercial. Cf. Chamness, 835 F.2d at 1353 ([The plaintiff] arguably had enough facts from the circumstances of [her child's] delivery to draw the same conclusions before the [airing of the] 20/20 show as after."). This underscores the Court's conclusion that for several years before the television commercial aired, Haynes-Johnson possessed facts that would have led a reasonable person to inquire into the possibility of a cause of action.
IV. CONCLUSION
In sum, the Court finds that Haynes-Johnson, having had knowledge of Talaya's injury, that is her diagnosis of cerebral palsy by April 1995, failed to exercise due diligence in inquiring into the cause of Talaya's injury. Consequently, the statute of limitations began to run as of April 1995, and expired in April 1997, more than four years prior to the filing of Haynes-Johnson's administrative claim against the Government. Alternatively, the Court finds that a reasonable person would have known, or should have known, enough information about Talaya's injury and its cause to trigger the statute of limitations under the FTCA well before May 19, 1999. In no event was Haynes-Johnson's administrative claim timely filed under § 2401(b). Thus, Haynes-Johnson's medical malpractice claim is time-barred and the Government is entitled to summary judgment in its favor.
The parties submitted a significant amount of briefing on the issue of Susie Moler's deposition testimony about her conversations with Haynes-Johnson and whether there is a dispute of fact concerning whether those conversations, in fact, occurred. At one point in her deposition, Haynes-Johnson stated that she did not recall saying to Moler that Talaya's injuries might have happened at birth, and when asked if it was possible she made such a statement to Moler, she stated she did not remember. Pla. Resp., Ex. 1, Haynes-Johnson Depo., at 104:18-25; 105:1-9. After a break in the deposition, when posed the same question about her statement to Moler about Talaya's injuries and her belief in a birth-related cause, Haynes-Johnson denied making the statement. Id. at 106:7-21; 124:25; 125:1-4. The Court need not resolve the issues of whether Haynes-Johnson's equivocal answers are sufficient to create a dispute of fact about possible statements to Moler, or what legal significance Haynes-Johnson's subjective belief in this regard would have if the statements were made. The undisputed facts, exclusive of Haynes-Johnson's possible statements to Moler, discussed in the preceding sections entitle the Government to judgment as a matter of law, rendering the possible fact issue immaterial.
Briefing was also submitted on the issue of Haynes-Johnson's purported admissions during her deposition that, before 2000, she thought Talaya's injuries were caused by lack of oxygen at birth based on what she was told by an unnamed medical provider that previously informed her of Talaya's mild cerebral palsy. Id. at 80:24-25; 81:1-25; 82:1-25; 83:1-24. Haynes-Johnson asserts that she did not understand the line of questions asked of her by defense counsel on the subject and subsequently changed her answers later in her deposition, stating that she knew nothing, and was told nothing about the cause of Talaya's cerebral palsy until 2000. Id. at 85:9-12; 106:1-6; 108:2-9, 15-19;122:19-25; 123:1-21. The Court need not decide whether Haynes-Johnson should be allowed to retract her original deposition answers due to her contention that she was confused. The undisputed facts, exclusive of this issue, entitle the Government to judgment in its favor, rendering the dispute immaterial.