Opinion
Civil No. 04-2316 (HL).
November 21, 2005
REPORT AND RECOMMENDATION
INTRODUCTION
On December 10, 2004, plaintiffs Silvestre Ramírez-Carlo and his wife Francisca Padilla filed the instant complaint against the United States of America for money damages under the Federal Tort Claims Act ("FTCA") for damages and injuries caused to plaintiff Ramírez-Carlo from alleged negligent acts, omissions and medical malpractice of the Department of Veterans Affairs ("VA"). In essence, plaintiffs claim Ramírez-Carlo received negligent treatment at the San Juan VA Medical Center consisting of failure to treat his coronary condition, which resulted in his suffering a myocardial infarction which required an open heart surgery. Plaintiffs claim $500,000.00 in damages. (Docket No. 1).
On April 7, 2005, the United States filed a Motion for Summary Judgment, Memorandum of Law in support thereof and a Statement of Uncontested Facts claiming the instant action is time barred because the claim was not presented to the federal agency within two (2) years after the claim accrued. Accordingly, there are no genuine issues of fact and, as a matter of law, summary judgment is warranted. (Docket No. 7).
On June 17, 2005, plaintiffs filed a Cross-Motion for Summary Judgment, a Memorandum of Law in Opposition to Summary Judgment for Defendant and in Support of Cross-Motion for Summary Judgment for Plaintiff and a Statement of Uncontested Facts in support thereof. Plaintiffs aver their administrative claim for misdiagnosis and non-treatment of the veteran's coronary artery disease was timely filed and, as a matter of law, summary judgment lies with plaintiffs and not with defendant. (Docket No. 20).
On July 26, 2005, the United States filed a Memorandum in Opposition to Plaintiff's Cross-Motion for Summary Judgment and a Statement of Uncontested Facts in Support thereof basically re-asserting the arguments raised in its Motion for Summary Judgment. (Docket Nos. 23 and 24).
On October 18, 2005, the Motion for Summary Judgment and the Cross-Motion for Summary Judgement were referred to the undersigned United States Magistrate Judge for report and recommendation. (Docket No. 25).
FACTUAL BACKGROUND
The following facts are uncontested.
On February 10, 1995, Ramírez-Carlo was admitted at the San Juan VA Medical Center with a diagnosis of suspected appendicitis evidenced by abdominal pain and general malaise. That day, the patient underwent an appendectomy that showed a normal appendix. An electrocardiogram ("EKG") performed that day showed a left axis deviation, an inferior infarct of undetermined age and T wave abnormality for which lateral ischemia needed to be considered. The Internal Medicine consultant recommended that, after the patient's discharge, he should be evaluated at the Internal Medicine Clinic for a Thallium test.
On February 11, 1995, cardiac enzymes studies were performed and showed normal results.
On February 13, 1995, the patient underwent an infectious disease consultation due to fever and evidence of bandemia. Infectious Disease recommended serial EKG's, cardiac enzyme studies, a cardiology evaluation, that Nefoxin be continued empirically, follow-up of cultures and an abdominal sonogram if abdominal pain persisted.
On February 15, 1995, an Echocardiogram was requested to rule-out an old inferior wall myocardial infarction and lateral ischemia. On February 16, 1995, the patient was discharged and ordered follow-up at the Surgery Clinic. On May 5, 1995, the Echocardiogram was performed which showed a segmental wall motion abnormality with left ventricular and apical akinesia suggestive of a prior myocardial infarction and a mild left ventricular dysfunction.
On May 31, 1995, the patient was seen at the Surgery Clinic and was described as doing well and he was given a subsequent appointment for November 29, 1995, but the patient failed to report.
On October 22, 1996, the veteran arrived at the Emergency Room of the Mayaguez VA Outpatient Clinic complaining of a two-week history of colicky abdominal pain with increased severity during the last three (3) days. Upon examination, the patient presented an elevated blood pressure of 160/100, he was described as being in no acute distress and his heart and extremities were essentially normal. The veteran was found as having intestinal pain and was discharged home with a prescription of antispasmodics and instructions to return the following day.
On October 23, 1996, the veteran returned to the Mayaguez VA Outpatient Clinic and indicated feeling the same. His blood pressure consisted of 150/100, he was described as being without acute distress and his abdomen was normal. The veteran was assessed as having intestinal pains and was discharged home with a prescription for antispasmodics.
Later that day, the veteran arrived at the Emergency Room of La Concepción Hospital complaining of strong chest pain for the last four (4) to five (5) hours. The patient appeared anxious and his blood pressure consisted of 160/100. The patient was ordered an EKG, which showed tracings of an acute anterior wall myocardial infarction and an old inferior wall myocardial infarction, and he was admitted to the intensive care unit.
On October 28, 1996, the patient was referred for a cardiac catheterization to be conducted at Hospital Perea. The cardiac catheterization detected a three-vessel disease and on October 29, 1996 the patient was transferred to St. Lukes Episcopal Hospital were he underwent coronary bypass surgery on October 31, 1996. On November 19, 1996, the patient was discharged.
ADMINISTRATIVE PROCEDURAL BACKGROUND
On February 11, 1998, plaintiffs filed an administrative claim with the VA alleging that on October 22-23, 1996, the VA Mayaguez Outpatient Clinic failed to diagnose and treat a pre-infarction angina due to which the veteran suffered a myocardial infarction and underwent open heart surgery on October 31, 1996 at a private hospital. On April 19, 1999, plaintiffs signed a Settlement Agreement in the amount of $30,000.00. Plaintiffs claim the parties agreed, as part of the Settlement, to sever the part of the claim which related to the treatment for the coronary condition on the basis of a February 10, 1995 EKG which resulted in the open heart surgery for which the veteran was hospitalized from October 29 to November 19, 1996 at St. Lukes Hospital, which claim would be resubmitted. (Docket No. 20, pp. 3-4 and P.E. 7).
On March 7, 2001, plaintiffs filed a second administrative claim alleging that from October 29, 1996 through November 19, 1996, the veteran was hospitalized at St. Lukes Episcopal Hospital where he underwent open heart surgery consistent of a coronary arterial bypass and the insertion of an intra-aortic balloon. Plaintiffs claim the open heart surgery was the result of the VA's failure to treat the patient's coronary condition diagnosed through an EKG of February 10, 1995 and that he did not know that he had a coronary condition until March 16, 1999 at which time his attorney became aware of this fact during the course of settlement discussions relevant to the prior administrative tort claim filed on February 11, 1998. Plaintiffs contend they were never informed of the results of the EKG.
On May 27, 2004, the VA denied plaintiffs' second administrative claim on timeliness grounds because the administrative claim was filed outside the two (2) year period established by 28 U.S.C. § 2401(b). Furthermore, it was indicated that plaintiff Ramírez-Carlo's pre-existing coronary artery disease was considered during the investigation of the original claim and its subsequent settlement.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Pursuant to the language of the rule, the moving party bears the two-fold burden of showing that there is "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir., 1997).After the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists "a trial worthy issue as to some material fact." Cortés-Irizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deemed "material" if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a "genuine" or "trial worthy" issue as to such a "material fact," "if a reasonable fact-finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Id.
At all times during the consideration of a motion for summary judgment, the Court must examine the entire record "in the light most flattering to the non-movant and indulge all reasonable inferences in the party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir., 1994). There is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood. . . ." Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir., 1987). In fact, "[o]nly if the record, viewed in [this] manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir., 1997).
Finally, when considering this motion, unsettled issues of motive and intent as to the conduct of any party will normally preclude the Court from granting summary judgment.Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 677 (1st Cir., 1996) (reversing summary judgment and emphasizing that "determinations of motive and intent . . . are questions better suited for the jury") (internal quotation marks omitted) (citation omitted). However, "even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences [or] unsupported speculation." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996).
ANALYSIS
Pursuant to the FTCA, a tort claim against the United States is "forever barred" unless it is presented in writing to the appropriate federal agency within two (2) years after the claim accrues. 28 U.S.C. § 2401(b). Accordingly, it is well-settled that an FTCA claim must be dismissed if a plaintiff fails to file a timely administrative claim. United States v. Kubrick, 444 U.S. 111, 113, 100 S.Ct. 352 (1979); Attallah v. United States, 955 F.2d 776, 779 (1st Cir. 1992); González-Bernal v. United States, 907 F.2d 246, 248 (1st Cir. 1990). This Court has repeatedly held that compliance with this statutory requirement is a jurisdictional prerequisite to suit that cannot be waived. Coska v. United States, 114 F.3d 319, 323 n. 8 (1st Cir. 1997);Corte-Real v. United States, 949 F.2d 484, 485-86 (1st Cir. 1991); González-Bernal, 907 F.2d at 248.
28 U.S.C. § 2401(b) provides: 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 or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
The general rule is that a tort claim accrues at the time of the plaintiff's injury. Kubrick, 444 U.S. at 120; Attallah, 955 F.2d at 779.
Under the well-established "discovery rule" exception to the rule articulated above, however, a claim accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the factual basis for the cause of action. Kubrick, 444 U.S. at 121-24; Attallah, 955 F.2d at 780;Nicolazzo v. United States, 786 F.2d 454, 455 (1st Cir. 1986); see also Fidler v. Eastman Kodak, 714 F.2d 192, 199 (1st Cir. 1983) ("notice of likely cause is ordinarily enough to start the statute running"). The standard is an objective one; in order to toll the statute of limitations pursuant to the discovery rule, the factual basis for the cause of action must have been "inherently unknowable" at the time of injury.Attallah, 955 F.2d at 780. The factual basis for a cause of action is "inherently unknowable" if it is "incapable of detection by the wronged party through the exercise of reasonable diligence." Geo. Knight Co. v. Watson Wyatt Co., 170 F.3d 210, 213 (1st Cir. 1999).
Once a plaintiff knows of the injury and its probable cause, he/she bears the responsibility of inquiring among the medical and legal communities about whether he/she was wronged and should take legal action. Kubrick, 444 U.S. at 123. As the Supreme Court stated in Kubrick:
A plaintiff . . . armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.Id.; see also Hau v. United States, 575 F.2d 1000, 1003 (1st Cir. 1978) ("When the facts [become] so grave as to alert a reasonable person that there may have been negligence related to the treatment received, the statute of limitations [begins] to run against the appellant's cause of action");González v. United States, 284 F.3d 281, 287 (1st Cir. 2002) (same).
See also Cragin v. United States, 684 F.Supp. 746, 753 (D.Me. 1988), aff'd 873 F.2d 1433 (1st Cir. 1989) ("after plaintiffs kn ow of the injury at issue and its probable cause, they bear the responsibility of inquiring among the medical and legal communities whether the treatment they received was proper or warranted legal action"); Harrison v. United States, 708 F.2d 1023, 1027 (5th Cir. 1983) (noting that the statute of limitations begins to run where the facts available to the plaintiff would lead a reasonable person to (1) conclude that a causal connection between the treatment and injury exists or (2) to seek professional advice and then conclude that such a connection exists).
A plaintiff does not need to know either the full extent of the injury, Marrapese v. Rhode Island, 749 F.2d 934, 940 n. 10 (1st Cir. 1984), or that it was negligently inflicted,Kubrick, 444 U.S. at 124. If, however, a plaintiff's "blameless ignorance" prevents him or her from discovering the cause of action, the statute of limitations begins to run when the "factual predicate for a malpractice claim" becomes apparent.Nicolazzo, 786 F.2d at 456; Kubrick, 444 U.S. at 120 n. 7;Urie v. Thompson, 337 U.S. at 163, 169-70, 69 S.Ct. 1018 (1949).
Further, the limitations period begins to run regardless of whether plaintiffs make inquiries, and regardless of whether they are correctly advised. Kubrick, 444 U.S. at 124, 100 S.Ct. 352. As the Supreme Court stated in Kubrick:
If there exists in the community a generally applicable standard of care with respect to the treatment of [the plaintiff's] ailment, we see no reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard. If advised that he has been wronged, he may promptly bring suit. If competently advised to the contrary, he may be dissuaded, as he should be, from pressing a baseless claim. Of course, he may be incompetently advised or the medical community may be divided on the crucial issue of negligence. . . . But however or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiff's discovery of the relevant facts about injury.Id. at 123-24, 100 S.Ct. 352; see also Cragin, 684 F.Supp. at 754-55.
Under the discovery rule, plaintiffs in this case succinctly argue that their claims did not accrue until March 16, 1999, when they learned — during settlement negotiations of the first administrative claim — that the VA failed to treat plaintiff Ramírez-Carlo's coronary condition diagnosed through an EKG of February 10, 1995. Thus, plaintiffs conclude that the filing of the second administrative claim on March 7, 2001 was timely. We reject this argument and find that plaintiffs' claim accrued on October 31, 1996, when plaintiff Ramírez-Carlo underwent open heart surgery. We explain.
Plaintiffs' Opposition to the Motion for Summary Judgment briefly addresses, in less than two (2) pages, the government's contention that plaintiffs' claim is time barred. We note plaintiffs do not include any citations to jurisprudence or other legal grounds to justify plaintiffs' position. Moreover, plaintiffs totally fail to address the jurisprudence included by the government in the Motion for Summary Judgment to support its contention that plaintiffs' claim is time barred. (Docket No. 20, pp. 5-6).
By October 31, 1996, day of the open heart surgery, plaintiffs were aware Ramírez-Carlo had a coronary artery disease which was the reason for the open heart surgery. This is admitted by the veteran in his Sworn Statement in support of the Opposition to the Motion for Summary Judgment in which it is indicated that, at no time prior to his hospitalization at La Concepción Hospital on October 23, 1996, was he aware he suffered from a heart condition. (Docket No. 20, Statement of Uncontested Fact No. 37). Hence, by the veteran's own admission, he became aware that he suffered a prior heart condition when he was hospitalized at La Concepción Hospital and underwent the open heart surgery on October 31, 1996.
Moreover, at that time of the open heart surgery, the veteran knew he had undergone an EKG on February 10, 1995 and an Echocardiogram on May 5, 1995, both at the VA Hospital. Thus, even if we assume the results of both the EKG and the Echocardiogram were not informed to plaintiffs, it is an undisputed fact that the veteran never inquired about the results of the EKG nor of the Echocardiogram, not even after undergoing an open heart surgery seventeen (17) months after the studies were done. It is not until March 16, 1999, during settlement negotiations of the first administrative claim, that plaintiffs claim they learned of the abnormal results of the EKG. That is, more than four (4) years after the cardiac studies was done.
Plaintiffs aver the results of the EKG of February 10, 1995 were not informed but it is not clear from the records whether the results of the Echocardiogram of May 5, 1995 were also not informed.
We have no doubt that "[t]he surgical intervention of [October 31, 1996] unequivocally disclosed "a gamut of maladies which had not been uncovered by the Government physicians. Undoubtedly, said operation would have led a reasonable man to believe, as Plaintiff was conceitedly led to believe, that he had been negligently treated at the Veterans Administration." Miller v. United States, 458 F.Supp. 363, 365 (D. Puerto Rico 1978).
As stated in Reilly v. United States, 513 F.2d 147, 150 (8th Cir. 1975), "when the facts (become) so grave as to alert a reasonable person that there may have been negligence related to the treatment received, the statute of limitations (begins) to run against (Plaintiff's) cause of action."
Thus, under these circumstances, any reasonable person would have inquired at the VA of a possible prior cardiac condition and treatment for the same after the open heart surgery. More so, when the veteran had been under the medical care and treatment of the VA since September 6, 1977, as recognized by plaintiffs in their Memorandum of Law in Opposition to the Motion for Summary Judgment (Docket No. 20, p. 7) and the Statement of Uncontested Facts, and had undergone an EKG and Echocardiogram in early 1995. (Docket No. 20, p. 5). As such, since at least October 31, 1996, the veteran was armed with sufficient notice to inquire about a heart condition.
Accordingly, plaintiff Ramírez-Caro had in his possession facts sufficient to alert a reasonable person that negligence may have occurred in the course of his treatment at the VA after the EKG was performed on February 10, 1995. Thus, the cause of action accrued no later than October 31, 1996, day of the open heart surgery. Because plaintiffs filed their second administrative claim with the federal agency on March 7, 2001, this suit is time-barred.
Moreover, and in the alternative, we cannot obviate the fact that plaintiffs on February 11, 1998 filed the first administrative claim alleging that on October 22-23, 1996, the VA Mayaguez Clinic had failed to diagnose and treat a pre-infarction angina due to which the veteran suffered a myocardial infarction and underwent an open heart surgery. By the time the first administrative claim was filed, plaintiffs had already retained counsel Chaves-Ghigliotty to investigate the matter and represent them during the administrative proceedings. (Docket No. 20, Exhibit P.E. 5). These facts indicate that plaintiffs were on notice of the veteran's coronary artery disease by February 11, 1998, at the latest, when their attorney had already been retained. See Kay v. Johnson Johnson, 722 F.Supp. 874, 881 (D. Mass. 1989) (holding that a plaintiff's claim for injuries arising out of her use of oral contraceptives was time-barred where the cause of action accrued, at the latest, when the plaintiff consulted her first lawyer, who evaluated and investigated the potential claim); Pitts v. Aerolite SPE Corp., 673 F.Supp. 1123, 1128 (D. Mass. 1987) (holding that the plaintiffs were on notice of the likely causal connection between the formaldehyde foam insulation at issue and the family's illness where one plaintiff approached a physician and inquired about a possible connection, even though she neither received an answer nor investigated further); González, 284 F.3d at 290 (same).
See also Harrison, 708 F.2d at 1027 (a plaintiff need not have knowledge of fault in the legal sense for the statute to begin to run, but she must have knowledge of facts that would lead a reaso nab le 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.)
No evidence has been presented that plaintiffs or their attorney made any inquiry whatsoever as to the prior treatment received by the veteran at the VA in relation to the veteran's heart condition and a possible failure to diagnose the same after the abnormal results of the EKG of February 10, 1995. Plaintiffs, through their attorney, bore the responsibility of both inquiring among the medical and legal communities to determine whether they had an actionable claim and bringing any such claim within the statutory period. At the latest, this two-year period ended in February 11, 2000. Thus, under this alternate analysis, the suit is also time barred because plaintiffs filed their second administrative claim with the federal agency on March 7, 2001.
In addition, once the plaintiff was on notice of the injury and its potential cause, the limitations period began to run regardless of whether she had made inquiries, and continued to run even if she had been incorrectly advised. Kubrick, 444 U.S. at 124.
Being the instant action time barred, and there being no issues of material fact in controversy to preclude the entry of summary judgment, it is recommended that the government's Motion for Summary Judgment be GRANTED (Docket No. 7) and plaintiffs' Cross-Motion for Summary Judgment (Docket No. 20) be DENIED.
CONCLUSION
In view of the foregoing, it is recommended that the government's Motion for Summary Judgment (Docket No. 7) be GRANTED and plaintiffs' Cross-Motion for Summary Judgment (Docket No. 20) be DENIED.
IT IS SO RECOMMENDED.