Summary
assuming application, and deciding only whether statute was one of limitations or repose
Summary of this case from Cooper v. United StatesOpinion
CIVIL NO. CCB-08-3.
March 30, 2010
MEMORANDUM
Now pending before the court is a motion to dismiss filed by the defendant, the United States of America, against the plaintiff, Angelia M. Anderson. Ms. Anderson seeks damages, pursuant to the Federal Tort Claims Act ("FTCA"), for injuries she allegedly sustained as a result of negligent care she received at the Veterans Administration Medical Center ("VA Hospital") in Baltimore, Maryland in December 2002. The United States contends that Ms. Anderson's claim, filed with this court on January 2, 2008, is barred by Maryland's five-year statutory period for filing medical malpractice claims. The issues have been fully briefed and no hearing is necessary. For the following reasons, the court will grant the defendant's motion to dismiss.
BACKGROUND
Ms. Anderson alleges that she received negligent care at the Baltimore VA Hospital in relation to lymphoma in her spine. Ms. Anderson first arrived at the VA Hospital complaining of mid to lower back pain on February 22, 2002. After an MRI was performed, which revealed scattered marrow abnormalities throughout Ms. Anderson's lumbar spine, the radiologist recommended that bone scanning be performed. On May 13, 2002, a bone scan was performed and the results were abnormal. Thereafter, Ms. Anderson continued to be seen at the VA Hospital on a regular basis and on July 1, 2002, a bone marrow biopsy was performed, the results of which led to a diagnosis of B-cell lymphoproliferative disease in Ms. Anderson's spine. Accordingly, Ms. Anderson was scheduled to begin chemotherapy on August 26, 2002, and was given a fentanyl patch to control her pain. Chemotherapy did not begin as planned, however, because her doctors determined that a course of observation was more appropriate. She was seen again on September 30, 2002, when she reported continued pain on her left side. Her doctors responded by increasing her pain medication.
On December 19, 2002, Ms. Anderson arrived at the VA Hospital complaining of increasing pain and new symptoms, including pain and numbness radiating to her foot. She was discharged with instructions to report to the neurology clinic in four days. The next day, Ms. Anderson returned to the VA Hospital after she awoke with increased pain in her back and an inability to move her legs. An MRI was performed and failed to demonstrate any evidence of compression. On December 23, 2002, Ms. Anderson again returned to the VA Hospital reporting that she was unable to walk or stand. She complained that she felt numbness up to the level of her breasts. She was again discharged and instructed to return on December 26th for another MRI. Ms. Anderson reported instead to another hospital on December 24, 2002, where a physical examination and diagnostic studies revealed an epidural spinal tumor which was compressing her spinal cord. She underwent immediate surgery to relieve the spinal compression and remained at the hospital until December 30th.
Ms. Anderson alleges that the VA Hospital failed to recognize the symptoms of progressive spinal cord compression due to an epidural spine tumor which developed as a result of her known cancer. She alleges that as a result of the negligent care she received at the VA Hospital, she had to undergo emergency surgery on her spine, and she contends that notwithstanding this emergency surgery, the defendant's negligence left her with significant and permanent neurologic deficits, severe and permanent disability, unending pain and emotional anguish.
On December 17, 2003, Ms. Anderson filed a claim with the Veterans Administration in Baltimore. Her claim proceeded through the administrative process, including significant settlement discussions, until it was denied as not amenable to administrative resolution by letter dated September 26, 2007. She filed suit in this court on January 2, 2008. The government then filed a motion to dismiss arguing that Ms. Anderson had failed to file a claim and an expert certificate with the Maryland Health Care Alternative Dispute Resolution Office ("HCADRO"), as required by Maryland's Health Care Malpractice Claims Act ("HCMCA"), found at Md. Code, Cts. Jud. Proc. § 3-2A-04. In a previous opinion, this court stayed the case to allow Ms. Anderson the opportunity to file a complaint and certificate with HCADRO. Ms. Anderson did so in August 2008, and the stay was lifted on March 26, 2009.
2008 WL 3307137 (D. Md. Aug. 8, 2008).
2009 WL 890094 (D. Md. March 26, 2009).
The defendant has now filed a second motion to dismiss, arguing that Ms. Anderson failed to file the present suit within Maryland's five-year statute of repose, as set forth in Md. Code, Cts. Jud. Proc. § 5-109(a)(1).
ANALYSIS
The government has moved to dismiss Ms. Anderson's claim for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). A plaintiff may recover against the United States only to the extent it has expressly waived its sovereign immunity. Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005). Where the United States has not waived its sovereign immunity, a case ordinarily should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995); cf. Kerns v. United States, 585 F.3d 187, 195-96 (4th Cir. 2009). The "scope of a waiver of the Government's sovereign immunity will be strictly construed . . . in favor of the sovereign." Frahm v. United States, 492 F.3d 258, 262 (4th Cir. 2007) (internal quotation marks and citation omitted). It is the plaintiff's burden to "show that an unequivocal waiver of sovereign immunity exists". Welch, 409 F.3d at 651. "If the plaintiff fails to meet this burden, then the claim must be dismissed." Id. On a Rule 12(b)(1) motion a court may consider exhibits outside the pleadings, and "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Williams, 50 F.3d at 304.
A. Requirements for Filing FTCA Claim
Congress waived the sovereign immunity of the United States for certain torts committed by federal employees when it enacted the FTCA in 1946. Kerns, 585 F.3d at 194. The FTCA is a limited waiver of immunity, however, and imposes tort liability on the United States only "in the same manner and to the same extent as a private individual under like circumstances". 28 U.S.C. § 2674. Thus, the substantive law of each state establishes the cause of action. Kerns, 585 F.3d at 194; see also Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991). By contrast, "federal law defines the limitations period" of an FTCA claim. Miller, 932 F.2d at 303. Here, it is undisputed that Ms. Anderson complied with the FTCA's statute of limitations.
The FTCA statute of limitations is found in 28 U.S.C. § 2401(b), which 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 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 government contends that because Ms. Anderson did not file either her complaint in this court, or her claim in accordance with the HCMCA, within five years of her alleged injury, she is barred from suit under substantive Maryland law, and therefore barred from bringing an FTCA claim. This is so, the government argues, because Maryland's five-year limit on filing medical malpractice actions, Md. Code, Cts. Jud. Proc. § 5-109(a)(1), is a statute of repose, as opposed to a statute of limitations. The government suggests that while a Maryland statute of limitations would not bar Ms. Anderson's FTCA claim, a statute of repose acts as a substantive right to be immune from suit. See First United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989) (explaining that a statute of limitations is a procedural device, whereas a statute of repose creates a substantive right to be free from liability) (emphasis added). Thus, according to the government, to allow Ms. Anderson's claim to proceed would impose liability on the government in a different manner than on a private individual under like circumstances. See Cibula v. United States, 551 F.3d 316, 321-22 (4th Cir. 2009).
Ms. Anderson does not dispute that she filed her FTCA claim more than five years after the injury was committed; however, she disputes the government's contention that § 5-109(a)(1) bars her claim. For the reasons that follow, the court holds that § 5-109(a)(1) is a statute of repose and bars Ms. Anderson's claim.
At the latest, Ms. Anderson's injury was committed on December 24, 2002, when she underwent emergency surgery. She did not file the present suit until January 2, 2008, just over five years later.
B. Maryland's Five-Year Statutory Period for Filing Medical Malpractice Claims
Section 5-109(a) contains both a three-year limit, subject to the discovery rule, and a five-year limit, providing that "[a]n action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider . . . shall be filed within the earlier of: (1) Five years of the time the injury was committed; or (2) Three years of the date the injury was discovered." Md. Code, Cts. Jud. Proc. § 5-109(a). The government relies on the five-year bar.
On its face, the statute does not deprive a litigant of a right of action. Compare id., with Md. Code, Cts. Jud. Proc. § 5-108(a) (establishing that "no cause of action for damages accrues" for injuries resulting from improvements to property that occur more than twenty years after the completion of the improvement). Rather, it limits the period of time in which the litigant may exercise that right. See State v. Sharafeldin, 854 A.2d 1208, 1214 (Md. 2004). In Hill v. Fitzgerald, however, one of the Maryland Court of Appeals's first opportunities to interpret § 5-109, the court concluded that "the words of § 5-109 expressly place an absolute five-year period of limitation on the filing of medical malpractice claims calculated on the basis of when the injury was committed, i.e., the date upon which the allegedly negligent act was first coupled with harm." 501 A.2d 27, 32 (Md. 1985). Hill also held the discovery rule inapplicable: the five year maximum operates "without regard to whether the injury was reasonably discoverable or not." Id. at 33. Hill's holding was repeated by the Court of Special Appeals in Edmonds v. Cytology Services of Maryland, 681 A. 2d 546, 552 (Md. Ct. Spec. App. 1996). In affirming that ruling, the Court of Appeals referred to § 5-109 as the "medical malpractice statute of repose". Rivera v. Edmonds, 699 A.2d 1194, 1995 (Md. 1997). As recently as January 2010, the Court of Appeals again referred to § 5-109(a)(1) as "the statute of repose." Burnside v. Wong, 986 A.2d 427, 440 (Md. 2010).
Hill explained that the purpose of the statute "was to contain the `long-tail' effect of the discovery rule in medical malpractice cases by restricting, in absolute terms, the amount of time that could lapse between the allegedly negligent treatment of a patient and the filing of a malpractice claim related to the treatment." 501 A.2d at 32. "The statute is a response to the socalled crisis in the field of medical malpractice claims . . . and contains no room for any implied exception." Id.
It is true that a statute of repose, as compared to a statute of limitations, is "typically an absolute time limit beyond which liability no longer exists and is not tolled for any reason because to do so would upset the economic balance struck by the legislative body." First United, 882 F.2d at 866; Carven v. Hickman, 763 A.2d 1207, 1211 (Md. Ct. Spec. App. 2000) (quoting First United). Maryland's five-year limit is subject to tolling for fraud, infancy, and incompetence. See Md. Code, Cts. Jud. Proc. § 5-109(f); see also Piselli v. 75th St. Med., P.A., 808 A.2d 508, 519, 526 (Md. 2002) (holding that both the three- and five-year statutory periods must be tolled during a plaintiff's infancy but also referring to the five-year limit as a "statute of repose"). It also appears that, on occasion, Maryland courts have referred to § 5-109 as a statute of limitations. See, e.g., Sharafeldin, 854 A.2d at 1214. Nonetheless, particularly in light of the recent reference by the Court of Appeals in Burnside, I am constrained to conclude that the state's highest court views § 5-109(a)(1) as a statute of repose. As the FTCA waives the government's sovereign immunity to make the government liable only "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, Ms. Anderson's claim unfortunately is barred and this case must be dismissed for lack of subject matter jurisdiction.
Contrary to Ms. Anderson's argument, the government is not estopped from having her case dismissed. "Equitable estoppel against the government is strongly disfavored, if not outright disallowed, because it allows parties to collect public funds in a situation not expressly authorized by Congress." Volvo Trucks of N. Am., Inc. v. United States, 367 F.3d 204, 211 (4th Cir. 2004). The Supreme Court has observed that "we have reversed every finding of estoppel [against the government] that we have reviewed." Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 422-23 (1990). If estoppel is ever justified against the United States, there must be a showing by the plaintiff of "affirmative misconduct by government agents." Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003). There has been no such showing in this case and, therefore, the government is not estopped from seeking dismissal based on Ms. Anderson's failure to comply with Maryland's statute of repose.
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED:1. the defendant's motion to dismiss for lack of subject matter jurisdiction (docket entry no. 24) is GRANTED;
2. this case is DISMISSED; and
3. the Clerk shall CLOSE this case.