Opinion
CIVIL ACTION No. 99-5912.
June 18, 2003.
MEMORANDUM
Defendant United States of America moves for entry of summary judgment against plaintiff Zulay Rendon, Fed.R.Civ.P. 56, on the ground that the second amended complaint is time-barred under the Federal Tort Claims Act, 28 U.S.C. § 2401(b). Discovery on this issue is complete. The motion will be denied.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. All evidentiary inferences are drawn in favor of the non-movant. Dun Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F.3d 197, 205 (3d Cir. 2002).
The United States previously moved to dismiss the second amended complaint on the ground that this court lacked jurisdiction over the claim because it was time-barred. Fed.R.Civ.P. 12(b)(1); 28 U.S.C. § 2401(b). "When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion." Davis v. United States, No 97-CV-7122, 1998 WL 401640, at *1 (E.D. Pa. July 9, 1998), quoting Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). The motion was granted on February 21, 2001. The Third Circuit vacated the Order and remanded the issue for further consideration in light of Hughes v. United States, 263 F.3d 272 (3d Cir. 2001). Rendon v. Philadelphia Health Services, 2002 WL 1369591, at*1 (3d Cir. June 24, 2002). InHughes, the Third Circuit held for the first time that "the FTCA's statute of limitations is not jurisdictional" and "[f]ailure to comply with the statute is an affirmative defense which the defendant has the burden of establishing." 263 F.3d at 278.
The facts in this medical malpractice case are summarized inRendon v. United States, 98 F. Supp.2d 646, 647-48 (E.D. Pa. May 19, 2000). The issue presented here involves the application of the discovery rule under the two-year FTCA statute of limitations, 28 U.S.C. § 2401(b). Our Court of Appeals recently dealt with this issue, holding in a medical malpractice case arising from a failure to diagnose and treat that the claim does not accrue until plaintiff is aware of the government's role in causing the injury. Hughes, 263 F.3d at 277-78.
In Hughes, plaintiff was admitted to the Veterans Administration Medical Center on April 15, 1997, for cardiac catheterization and coronary bypass surgery. Heparin, a blood thinner, was administered in preparation for the surgery and was administered almost continuously from April 16 through April 23. Following surgery, Hughes developed gangrene in his extremities and they were later amputated. Id. at 273. Hughes had been heavily sedated following his surgery and did not awaken until June 4, 1997. At that time, VAMC doctors told Hughes he had suffered an allergic reaction to the heparin — a heparin-induced thrombocytopenia with thrombosis — that had caused gangrene, leaving the doctors no choice but to amputate. He was not told the amputation could have been avoided if the HITT had been timely diagnosed and treated. He was released from the VAMC on June 23, 1997. Id. at 274.
Hughes filed a claim for disability benefits in February 1999. In April 1999, Hughes' first attorney requested copies of his medical records. In his request for the records, the attorney noted that time was of the essence because Hughes' claim against the United States would expire on or about June 25 of that year. The attorney did not accept the case and did not file an administrative tort claim on Hughes' behalf. Id.
Hughes retained a second attorney in December 1999, who filed a Notice of Claim with the VA. The claim was rejected and Hughes filed an FTCA claim against the United States ten days later, to recover damages for the VAMC's failure to diagnose and treat the HITT. The United States filed a motion to dismiss for lack of subject matter jurisdiction, citing the FTCA two-year limitations period. The motion was granted. Id. Hughes appealed.
According to Hughes' argument, the statute of limitations was tolled until he became aware of the act or omission that caused his injury. He distinguished between his allergic reaction to heparin and the failure to diagnose and treat his condition, asserting that his claim did not accrue until he had knowledge of the latter. The Third Circuit agreed:
Hughes' injuries occurred not solely because of the heparin-induced reaction, which could easily have been halted, but because the VA doctors failed to diagnose and treat his allergic reaction. As in Augustine, `[t]he issue of the accrual in this case thus depends upon when and if plaintiff discovered or through the exercise of reasonable diligence should have discovered that the failure of his doctors to diagnose, treat, or warn him led to his deteriorating condition.'Id. at 277, quoting Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir. 1983). See also Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985) ("[w]hen there are two causes of an injury, and only one is the government, the knowledge that is required to set the statute of limitations running is knowledge of the government cause, not just of the other cause."); Waits v. United States, 611 F.2d 550, 552-53 (5th Cir. 1980) (where government's failure to properly treat infection resulted in amputation of plaintiff's leg, statute was tolled until government's failure to properly treat infection played role in causing injury was known to plaintiff).
Hughes is in contrast to United States v. Kubrick, 444 U.S. 111 (1979). In Kubrick, the Supreme Court held that a FTCA claim accrues when plaintiff is aware of the injury and the facts surrounding it. Id. at 122. Kubrick is factually distinguishable from Hughes. Kubrick's injury was the result of the affirmative administration of a drug, which caused Kubrick to lose his hearing. Hughes' injury was the result of not promptly diagnosing and treating his allergic reaction to a drug. Further, though Hughes knew of his injury and its apparent cause, he "was not provided any information that should have led him to believe that it was the failure to treat timely the allergic reaction to the heparin that caused the formation of gangrene. On the contrary, he was led to believe that the formation of the gangrene was a natural, albeit unexpected, allergic reaction to the heparin dosage." Hughes, 263 F.3d at 276.
This case closely resembles Hughes. Under Hughes, to obtain summary judgment, the United States must establish that, more than two years before filing this case, plaintiff discovered that the development of avascular necrosis in Karina's right hip was the result of the government physician's failure to treat a slipped capital femoral epiphysis. The United States has not done so.
In addition to clarifying the accrual date of a medical malpractice case arising from a failure to diagnose and treat,Hughes also held that "[f[ailure to comply with the statute is `an affirmative defense which the defendant has the burden of establishing.'" Id. at 278, quoting Schmidt v. United States, 933 F.2d 639, 640 (8th Cir. 1991).
Plaintiff knew Karina was diagnosed with a slipped capital femoral epiphysis no later than November 1996. See St. Christopher's Discharge Summary, dated November 22,1996; St. Christopher's Nursing Discharge Summary, dated November 22, 1996, signed by plaintiff. Plaintiff knew Karina was diagnosed with avascular necrosis of her right hip no later than August 27,1997. See August 26, 1997 note to Karina's school requesting that her classes be arranged to minimize stair climbing because "[s]he has a slipped capital femoral epiphysis with some avascular necrosis of the R femoral head;" St. Christopher's pre and post-operative nursing records, dated August 4, 1997; St. Christopher's Preregister Outpatient Form, dated August 1, 1997; St. Christopher's Department of Radiology records, dated June 26, 1997; St. Christopher's Department of Radiology report, dated June 26, 1997. Plaintiff did not know (nor should have known) that Karina's avascular necrosis may have developed because of PHS' failure to diagnose and treat her slipped capital femoral epiphysis in the summer of 1996. Plaintiff did not learn this until an expert reviewed Karina's records prior to issuing reports on February 9, 1999 and May 12, 1999. Under Hughes, plaintiff's claim did not accrue until that time and was not time-barred when filed on September 17, 1999.
An order accompanies this opinion.
ORDER
AND NOW, this 18th day of June, 2003, defendant United States of America's motion for summary judgment is denied for the reasons set forth in the accompanying Memorandum.