Opinion
Case No. 1:01-CV-812
February 26, 2002
OPINION
This matter is before the Court on Defendant United States of America's Motion to Dismiss. The Court determines that oral argument is unnecessary and would unduly delay decision of this matter. See Local Civil Rule 7.2(d). For the reasons which follow, the Motion will be granted.
FACTS
This action is brought against the United States of America. The United States of America has been substituted by federal statute because it, between May and July 1999, employed physician Julia Hall, M.D., and Hackley Community Hospital as part of its Public Health Service. It is alleged that Plaintiff sought treatment from Dr. Hall for pain in her left foot beginning in May 1999, that Plaintiff was treated with pain medication and was not referred to a vascular surgeon, that Plaintiff later presented in late June 1999 with gangrene in her left foot, and that the condition of her foot caused the amputation of the second and third toes of her left foot in late July 1999. (Complaint at ¶¶ 5-12.) Plaintiff also alleges that the medical treatment was negligent and violated the professional standards for medical care. (Complaint at ¶¶ 14-15.)
Plaintiff filed suit, initially, before the Circuit Court for the County of Muskegon, Michigan on or about September 28, 2001. The suit was then removed to this Court on December 14, 2001 by the United States of America pursuant to 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d)(2).
Defendant's Motion to Dismiss is premised on a failure to administratively exhaust the claims as required by the Federal Tort Claims Act ("FTCA") and the failure to file the suit within the applicable two-year statute of limitation. Relating to exhaustion, Plaintiff indicates that her counsel filed a "Notice of Intent" pursuant to state statute, Mich. Comp. Laws § 600.2912b, with the Department of Health and Human Services on or about March 21, 2001. The Notice of Intent did not include a request for a "sum certain." (See Government's Exhibit A.) The Notice of Intent was responded to by letter of Linda A. Vincent, Claims Specialist, acting for the Department of Health and Human Services. Vincent's letter of March 28, 2001 informed Plaintiff that administrative exhaustion was required and attached Standard Form 95, "Claim for Damage, Injury or Death," to her letter for use in exhausting the claim. (Plaintiff's Exhibit 1.) The letter further indicated that it was essential that the form be completed and that the form include a request for a "sum certain" of damages. (Id.) There was no other correspondence relating to the claim-i.e., Plaintiff did not complete the Form 95 and did not request a "sum certain" and Defendant did not otherwise act to either allow or disallow any claim.
STANDARD FOR SUMMARY JUDGMENT
Because this Motion to Dismiss raises matters outside the pleadings, it will be deemed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(b). Under the language of Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with 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. The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). If the non-movant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323.
LEGAL ANALYSIS
Plaintiff takes the position that her Notice of Intent was a claim with the Department of Health and Human Services and that the failure of the Department to issue any decision as to the claim constituted a denial of the claim pursuant to 28 U.S.C. § 2675(a). This position is contradicted by the case law of this Circuit. The FTCA administrative exhaustion requirement is a jurisdictional prerequisite for federal jurisdiction. Joelson v. United States, 86 F.3d 1413, 1422 (6th Cir. 1996).
To meet this prerequisite, a plaintiff need not file any specific form, but the plaintiff must: (1) provide written notice sufficient for the agency to investigate the claim; and (2) include a request for a "sum certain." Blakely v. United States, 276 F.3d 853, 864-65 (6th Cir. 2002); Glarner v. United States, 30 F.3d 697, 700 (6th Cir. 1997); Sellers v. United States, 870 F.2d 1098, 1101 (6th Cir. 1989). Because the Notice of Intent contained no request for a sum certain, it could not, as a matter of law, be construed as a claim, and the failure to otherwise respond to the Notice cannot, as a matter of law, be deemed a denial of a claim. Therefore, the Court determines that the Plaintiff has failed to exhaust administrative remedies.
Defendant requests dismissal of this suit with prejudice on the ground that Plaintiff can no longer exhaust the administrative claim because the statute of limitation period of two years under 28 U.S.C. § 2401 has lapsed. Counsel for Plaintiff argues that she falls within the "savings clause" of 28 U.S.C. § 2675(d)(5) in that "the claim would have been timely had it been filed on the date the underlying civil action was commenced . . ." Plaintiff construes the filing of her Notice of Intent as the commencement of a civil action such that this provision of the statute was triggered.
Plaintiff's construction has simply no support in the law. No case law is even cited in favor of this position. Regardless of whether the terms "on the date the underlying civil action was commenced" are interpreted under federal or state law, Plaintiff has failed to timely commence a "civil action." Plaintiff's claims accrued, at the latest, when her toes were amputated in July 1999.
Under Michigan law medical malpractice claims are deemed to accrue at the times of the acts or omissions giving rise to the claims, regardless of whether a plaintiff has knowledge of such claims and regardless of whether a plaintiff continues to receive professional service from the physician. See McKinney v. Clayman, 602 N.W.2d 612, 615-616 (Mich.Ct.App. 1999). In this case, the claims accrued, at the latest on July 26, 1999, the date of the amputation surgery at Hackley Hospital.
This action was not filed until September 2001-more than two years after the accrual of the claims. The sending to the Department of Health and Human Services of an attorney letter does not constitute the "commencement of an action" under either state or federal law. Rule 3 of the Federal Rules of Civil Procedure and Rule 2.101 of the Michigan Rules of Court both provide that a civil action is commenced by the filing of a complaint with the federal or state court, respectively. See Neal v. Oakwood Hospital Corp., 575 N.W.2d 68, 78 (Mich.Ct.App. 1998) (holding that medical malpractice action was commenced by the filing of a complaint and not by the filing of a "notice of intent"); see also Macon v. ITT Continental Baking Co., Inc., 779 F.2d 1166, 1169 (6th Cir. 1985) (recognizing general rule that federal action is commenced by the filing of a complaint with the court); United States v. Wahl, 583 F.2d 285, 288 (6th Cir. 1978) (same); Mohler v. Miller, 235 F.2d 153, 154-55 (6th Cir. 1956) (same).
Accordingly, the Court determines that this action was not commenced within two years of the accrual of Plaintiff's cause of action. The Court also determines that there is not, on the facts presented, any basis for equitably tolling the limitation period. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (holding that "[o]ne who fails to act diligently [by ignoring instructions] cannot invoke equitable principles to excuse that lack of diligence.").
CONCLUSION
For the reasons stated, an Order of Dismissal shall enter granting the Defendant's Motion to Dismiss and dismissing this action with prejudice.
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Defendant United States of America's Motion to Dismiss (Dkt. No. 6) is GRANTED and that this action is DISMISSED WITH PREJUDICE.