Aldridge v. U.S.

Full title: JOHN ALDRIDGE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Oct 31, 2002

Civil Action No. 7:01-CV-252-R (N.D. Tex. Oct. 31, 2002)

Opinion

Civil Action No. 7:01-CV-252-R

October 31, 2002

MEMORANDUM OPINION AND ORDER

JERRY BUCKMEYER, United States District Judge.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, filed September 9, 2002, and DEFENDANT'S MOTION TO DISMISS (contained within the motion for summary judgment)¹ are before this Court. For the reasons discussed below, Defendant's Motion for Summary Judgment is DENIED WITHOUT PREJUDICE, and Defendant's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

1 Although this Court generally does not consider motions to dismiss contained within other motions, issues of subject matter jurisdiction such 85 timeliness under the FTCA can be raised at anytime. Johnston v. U.S., 85 F.3d 217, 218 fn. 2 (5th Cir. 1996) (citations omitted).

Plaintiff; acting pro se, brings this action under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 1346 (b), 2671-2680, alleging negligence in the provision of medical care at Shephard Air Force Base. Specifically, Plaintiff alleges two instances of medical malpractice: 1) failure of Defendant to diagnose Plaintiff's skin cancer until 1991, and 2) prescription by Defendant of the allegedly harmful drag Halcion to Plaintiff during the period 1986-1988.

I. DEFENDANT'S MOTION DISMISS

Defendant contends that both claims are time-barred under the FTCA's two-year statute of limitations which, in relevant part, states that:

[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. § 2401(b).

Accepting Plaintiff's factual allegations as true for the purposes of review of the Motion to Dismiss, Plaintiff's assertion that Defendant should have diagnosed his skin cancer "around 1984-86" ( Complaint, at ¶ E) or "probably in November 1983" (Plaintiff's Brief in Support of Response to Defendant's Motion for Summary Judgments at ¶ 9) rather than in 1991 is time-barred as any such claim would have expired in 1993. Plaintiff did not file his claim until August 1999. Thus, Defendant's Motion to Dismiss is GRANTED as to the claim of failure to diagnose Plaintiff's skin cancer until 1991.

As regards Plaintiff's other claim, the allegedly improper prescription of Halcion, Plaintiff and Defendant dispute when the claim "accrued" for purposes of the FTCA. Plaintiff alleges that the claim accrued in early 1999 and was thus timely filed, while Defendant contends the claim accrued in 1996 and hence is time-barred. The Fifth Circuit has held that an action accrues when the "claimant discovered or in the exercise of reasonable diligence should have discovered the existence of the acts upon which his claim is based" Quinton v. United States, 304 F.2d 234 (5th Cir. 1962) (quoted in Dubose v. Kansas City Southern Railway Co., 729 F.2d 1026, 1029 (5th Cir. 1984)).

In March 1996, while awaiting surgery, Plaintiff had a brief discussion with a hospital employee:

I recall being given some pre anesthesia medication "to make you drowsy." I asked what it was. The nurse, or technician, replied "Halcion." I replied something like "Oh, I used to take that pretty regular a few years back." [sic] At that point the nurse appeared uncomfortable and slightly evasive and said something like "Oh but we follow the literature real carefully and (the Halcion] won't harm you" I asked what he meant by that and he indicated that there "may have been some problems" with Halcion but emphasized again that "this dose won't harm you."

Joint Appendix to Defendant's Motion for Summary Judgment, at 10. Defendant argues that this conversation was sufficient to put Plaintiff on notice and thus trigger accrual of his claim. Plaintiff responds by arguing that, as he was unaware of the dangers of Halcion, this single, short conversation was insufficient to put him on notice. Plaintiff's Brief in Support of His Response to Defendant's Motion for Summary Judgment, at 2. The Fifth Circuit has stated that, "[t]he question of what knowledge should put a claimant on notice of the existence of a viable claim is not soluble by any precise formula." Watts v. U.S., 611 F.2d 550, 552 (5th Cir. 1980). This Court declines to hold that this conversation, alone and without any factual context or elaboration, is sufficient at this stage to dismiss Plaintiff's claim. At trial, Plaintiff may be able to demonstrate facts supporting a conclusion that it was not reasonable for a patient, in the process of receiving pre-operation anesthesia, to have been put on notice by this one conversation. This Court will not grant a motion to dismiss unless "it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle [P]laintiff to relief." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 1998) (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998)). Thus, Plaintiff's Motion to Dismiss is DENTED as to the Halcion claim.

II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Turning to Defendant's motion for summary judgment, under Texas law, it is well established that:

a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient's injuries.

Bowles v. Bourdon, 219 S.W.2d 779, 782 (Tex. 1949) (citations omitted). Thus Plaintiff cannot prevail on the Halcion claim unless he submits expert testimony regarding negligence and proximate cause. Plaintiff has failed to provide this Court with any expert testimony regarding his claim. Such lack of expert testimony would be fatal at trial. However, Plaintiff states that he has not yet had sufficient opportunity to review his medical records and that when he does so he will be able to offer a more sufficient response to Defendant's motion.² Defendant's Brief In Support of His Response to Defendant's Motion for Summary Judgment, at 4. Moreover, Plaintiff is acting pro se. As such, this Court is unwilling to foreclose Plaintiff's opportunity to seek legal redress simply because the discovery deadline has passed. Defendant is hereby ORDERED to allow Plaintiff access to his medical records. In the interest of allowing a fuller development of the factual record as it relates to the remaining claim. Defendant's Motion for Summary Judgment is DENIED WITHOUT PREJUDICE.

2 This Court also notes that Plaintiff's concerns regarding application of 10 U.S.C. § 1102 are inapposite. See In re US., 864 F.2d 1153 (5th Cir. 1989) (discussing application of § 1102).

III. CONCLUSION

For the foregoing reasons, Defendant's Motion for Summary Judgment is DENIED WITHOUT PREJUDICE, and Defendant's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

In addition, the Scheduling Order for this case is hereby AMENDED as follows: Deadline for Completion of Discovery and Designation of Plaintiff's Experts, January 15, 2003; Deadline for Joint Submission of Dispositive Motions, March 1, 2003; Deadline for Pretrial Disclosures, April 15, 2003; Deadline for Pretrial Materials, April 15, 2003; Final Pretrial Conference, May 3, 2003 (9:00 A.M.); and Trial Setting, May 2003 (4 week docket).