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finding plaintiff's injury was not her cancer "but its 'growth' after the Bronx VA failed to diagnose it," which caused further medical complications
Summary of this case from Torres v. U.S. & Lutheran Med. Ctr.Opinion
03 Civ. 9909 (GEL).
March 22, 2007
Patrick J. Filan, Filan Associates LLC, Westport, CT, for plaintiff.
Michael J. Garcia, United States Attorney for the Southern District of New York, by Lawrence H. Fogelman, Assistant United States Attorney, New York, NY, for defendants.
OPINION AND ORDER
Plaintiff Bernice Williams, a former member of the United States Army ("the Army"), brings this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, alleging that the Army and the Bronx Veteran's Administration Medical Center ("Bronx VA") negligently failed to diagnose her with colon cancer. Defendants — the United States, the Army, Bronx VA, and various employees of Bronx VA — move for summary judgment on plaintiff's claims, arguing, inter alia, that plaintiff failed to exhaust the administrative remedies available to her from the Army, that defendants are immune from suit for the alleged malpractice of plaintiff's attending physician at Bronx VA, and that plaintiff's suit is barred by the FTCA's statute of limitations. For the following reasons, the defendants' motion will be granted in part and denied in part.
BACKGROUND
The essential facts are mostly undisputed. Plaintiff was on active duty in the Army from May 17, 1992 until May 17, 1996. (Pl. Aff. ¶ 2.) During her service, she was stationed in Germany and Tacoma, Washington. (Id.) While stationed in Germany, plaintiff became pregnant. (Id. ¶ 3.) Plaintiff returned to the United States and gave birth at the Keller Army Hospital in West Point, New York. (Id.; Pl. Dep. 190.)
A party moving for summary judgment in this district must submit along with its other motion papers a separate statement of numbered material facts "as to which the moving party contends there is no genuine issue to be tried." S.D. E.D. N.Y. R. 56.1(a) ("Rule 56.1 Statement"). The opposing party is required to submit a counterstatement responding to each numbered paragraph in the moving party's statement, and any additional paragraphs setting forth other material facts as to which the opposing party contends there is a genuine issue to be tried ("Counterstatement"). Id. at (b). While defendants in this case included a Rule 56.1 Statement with their motion papers, plaintiff failed to file the required Counterstatement.
"[W]here the opposing party does not specifically controvert an asserted material fact of the moving party, such fact is deemed to be admitted for purposes of the motion." Derienzo v. Metro. Transp. Auth., 404 F. Supp. 2d 555, 557 (S.D.N.Y. 2005) (citation omitted). See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) ("If the opposing party . . . fails to controvert a fact . . . set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted."). However, defendants nevertheless must adduce admissible evidence in the record to support the factual assertions contained in the Rule 56.1 Statement, as plaintiff "is not required to rebut an insufficient showing." Id. at 140-41. See 24/7 Records, Inc. v. Sony Music Entm't, Inc., 429 F.3d 39, 46 (2d Cir. 2005) (noting that a defendant who moves for summary judgment but fails to show an absence of evidence supporting plaintiff's claims should not receive summary judgment, even if plaintiff does not oppose the motion with any evidence). In addition, the Court may, in its discretion, consider any facts "the parties fail to point out in their Rule 56.1 statements." Id. (citation and internal quotation marks omitted).
Thus, plaintiff's failure to file a Counterstatement neither forecloses this Court from considering facts not presented in defendants' Rule 56.1 Statement, nor compels the Court to accept the factual assertions in defendants' Rule 56.1 Statement as true without examining defendants' supporting evidence. As a result, the undisputed facts that are admitted for the purposes of this motion have been gleaned from an examination of the testimony and supporting evidence presented by both plaintiff and defendants.
There is a dispute over whether plaintiff was on "maternity leave" after giving birth to her daughter. (Compare Pl. Dep. 199 ("I was maternity leave for a while. . . ."), with McClelland Aff. ¶ 2 ("There is not now, nor was there in 1994, a program in the Army titled `maternity leave.'").)
Shortly after giving birth on April 4, 1994, plaintiff began experiencing gastrointestinal problems. (Pl. Dep. 199.) Plaintiff informed doctors at Keller Army Hospital of her problems, but, according to plaintiff, the doctors attributed her "discomfort" to her recent cesarean section. (Id. 199, 209.) Plaintiff then returned to Germany, where she worked as a medical assistant at an Army field hospital. (Pl. Aff. ¶ 9.) While in Germany, plaintiff's gastrointestinal problems worsened. (Pl. Dep. 253.) Plaintiff repeatedly visited Army doctors in Germany as a result of her worsening condition. (Id. 236 (stating that she visited the doctor "probably like three times . . . a week"); Def. Exh. 3.)
Plaintiff returned to the United States in the fall of 1994 and was stationed in Tacoma, Washington, where she remained until the end of her active duty. (Pl. Aff. ¶ 12.) Plaintiff worked as a medical technician at an Army hospital in Tacoma. (Id.; Pl. Dep. 231.) Her condition continued to deteriorate, and she frequently visited Army physicians. (Pl. Dep. 261, 266.) Plaintiff was not given a colonoscopy or sigmoidoscopy to diagnose her gastrointestinal problems, although she claims she requested one. (Id. 250-52; Pl. Aff. ¶ 15.) Instead, plaintiff was referred to a plastic surgery clinic to "tighten up [her] abdominal muscles." (Pl. Aff. ¶ 17; Def. Exh. 7.)
On June 25, 1997, after her discharge from the Army, plaintiff visited the Bronx VA Women's Health clinic and met with Nurse Practitioner Cheryl Ann Adams to discuss her condition. (Def. Exhs. 1, 4, 7; Pl. Dep. 294, 301.) Nurse Adams referred plaintiff to a gynecologist, Dr. David Schonholz. (Def. Exh. 4.) Plaintiff met with Dr. Schonholz on July 7, 1997. (Def. Exhs. 5, 7.) Dr. Schonholz referred plaintiff to a gynecologist specialist at Bronx VA. (Id.; Schonholz Dep. 34-35.) Neither Dr. Schonholz nor any Army physician diagnosed plaintiff with colon cancer. (Pl. Aff. ¶ 22.)
Plaintiff also visited the Bronx VA dental clinic. (Pl. Dep. 300-01; Def. Exh. 7 (notes of Dr. Eric Schoenfeld).)
It is unclear whether plaintiff actually ever met with the referred doctor; however, she does not recall visiting the Bronx VA Women's Health Clinic more than "one or two times." (Pl. Dep. 300-01.)
On October 14, 1999, plaintiff met with Dr. Jonathan Lanzkowsky, a gynecologist not associated with the Army or Bronx VA, for an opinion on her "ongoing abdominal pelvic pain." (Pl. Aff. ¶ 25; Lanzkowsky Dep. 22.) Dr. Lanzkowsky felt a mass in plaintiff's pelvis and ordered a pelvic ultrasound. (Lanzkowsky Dep. 46; Def. Exh. 9.) Plaintiff underwent that test on October 18, 1999. (Def. Exh. 10.) Because of the abnormal ultrasound results, Dr. Lanzkowsky referred plaintiff to a gastroenterologist, Dr. Lawrence B. Cohen. (Def. Exh. 12.)
Dr. Cohen examined plaintiff on October 21, 1999. (Cohen Dep. 15; Def. Exh. 12.) Dr. Cohen performed a sigmoidoscopy, which indicated a mass in her colon. (Cohen Dep. 26; Def. Exh. 13.) Dr. Cohen ordered a biopsy of the mass, which came back positive for colon cancer. (Def. Exh. 14.) Plaintiff learned that she had colon cancer on October 25, 1999. (Pl. Dep. 153.)
Dr. Cohen referred plaintiff to Dr. Randolph Steinhagen, a colorectal surgeon, to operate on her cancer. (Steinhagen Dep. 12; Pl. Aff. ¶ 28.) Plaintiff met with Dr. Steinhagen on October 27, 1999. (Pl. Aff. ¶ 31.) On November 1, 1999, Dr. Steinhagen surgically removed the tumor. (Def. Exh. 16.) Because the cancer had "invad[ed] [plaintiff's] uterus," Dr. Steinhagen also performed a hysterectomy on plaintiff at that time. (Id.) Plaintiff returned to Dr. Steinhagen on November 8 and November 21, 1999, for post-operative visits. (Steinhagen Dep. 114-15; Def. Exh. 16.)
On October 30, 2001, plaintiff filed an administrative claim with the Department of Veterans Affairs ("the Department"), alleging that Bronx VA had committed medical malpractice by failing to diagnose her colon cancer. (Def. Exh. 17.) The claim was received by the Department on October 31, 2001. (Id.) The Department denied plaintiff's claim on October 1, 2002. (Compl. Exh. B.) On April 1, 2003, plaintiff appealed the Department's decision to the Office of the General Counsel of the Department. (Compl. Exh. C.) The Office of the General Counsel denied plaintiff's appeal on June 13, 2003. (Compl. Exh. D.) Plaintiff never filed an administrative claim with the Army or any agency within the Department of Defense. (Rouse Aff. ¶ 2.)
On December 11, 2003, plaintiff filed the complaint that initiated this action. On July 7, 2006, following completion of discovery, defendants moved for summary judgment; plaintiff responded on October 9, 2006. Both motions were fully submitted as of December 12, 2006.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court's responsibility is to determine if there is a genuine issue to be tried, and not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court must draw all reasonable inferences and resolve all ambiguities in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving party. Id. at 254-255.
The party seeking summary judgment bears the burden of showing that no genuine factual dispute exists. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). Once the moving party has made a showing that there are no genuine issues of material fact, the burden shifts to the nonmoving party to raise triable issues of fact. Anderson, 477 U.S. at 250. Mere conclusory allegations will not suffice. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). A genuine issue for trial exists if, based on the record as a whole, a reasonable trier of fact could find in favor of the nonmoving party. Anderson, 477 U.S. at 248.
II. FTCA's Exhaustion Requirement
Plaintiff brings this suit pursuant to the FTCA, which confers subject matter jurisdiction on federal district courts to hear certain claims against the United States. 28 U.S.C. §§ 1346(b), 2671-2680. The FTCA requires a plaintiff to exhaust all administrative remedies against the appropriate federal agency before bringing suit in court. Defendants argue that, since plaintiff failed to exhaust her administrative remedies with the Army, this Court lacks jurisdiction over plaintiff's medical malpractice claim against the Army insofar as it rests on alleged malpractice by Army doctors. Defendants are correct.
The complaint names as defendants the United States, Bronx VA, and four employees of the Bronx VA. As an initial matter, a suit under the FTCA lies only against the United States, as the FTCA only authorizes suit against the United States. See 28 U.S.C. §§ 1346(b)(1), 2679(a); Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 40 (2d Cir. 1991) (stating that an action under the FTCA "must be brought against the United States rather than an agency thereof"); C.P. Chem. Co., Inc. v. United States, 810 F.2d 34, 37 n. 1 (2d Cir. 1987) ("[O]nly the United States may be held liable for torts committed by a federal agency, and not the agency itself."); Myers Myers, Inc. v. United States Postal Serv., 527 F.2d 1252, 1256 (2d Cir. 1975) (holding that the United States is the only proper defendant under the FTCA). Thus, the Court does not have jurisdiction under the FTCA to hear plaintiff's claim against Bronx VA or individual employees of Bronx VA, and "[n]o justification for ancillary or diversity jurisdiction has been claimed or argued for by" plaintiff in this case. Myers Myers, Inc., 527 F.2d at 1256. Accordingly, the complaint must be dismissed as to all defendants except the United States.
Defendants did not raise this issue in their initial brief; instead, defendants first raised this issue in their reply. (Def. Reply 14 n. 5.) Accordingly, the Court granted plaintiff leave to file a sur-reply responding to this issue. Plaintiff declined to file a sur-reply, and has presented no arguments or evidence regarding this issue.
As a sovereign, the United States is immune from suit unless it has consented to jurisdiction. Kulawy v. United States, 917 F.2d 729, 733 (2d Cir. 1990). If the United States consents to jurisdiction, its consent defines the parameters of the court's subject matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 586 (1941); Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998). Statutory waivers of sovereign immunity must be strictly construed against the claimant, including "[a]ny limitations imposed by the waiver statute, whether they be substantive, procedural, or temporal." Millares Guiraldes, 137 F.3d at 719.
The FTCA is a "limited waiver" of sovereign immunity. Bertin v. United States, ___ F.3d ___, 2007 WL 574705, at *2 (2d Cir. Feb. 26, 2007). The FTCA confers jurisdiction on federal district courts to hear claims against the United States alleging "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b). Tort claims, such as claims of medical malpractice, are actionable under the FTCA. United States v. Kubrick, 444 U.S. 111 (1979).
In order for this Court to have jurisdiction over plaintiff's claims, plaintiff must satisfy all of the FTCA's requirements. In re Agent Orange Prod. Liability Litig., 818 F.2d 210, 214 (2d Cir. 1987) ("The burden is on the plaintiff to both plead and prove compliance with the statutory requirements [of the FTCA].") (citation omitted); see Morales v. United States, 38 F.3d 659, 660 (2d Cir. 1994) (per curiam) (requiring a plaintiff who sues the United States to "compl[y] with all statutory and regulatory prerequisites to such a suit"). Before filing suit in federal court, FTCA claimants are required to have "previously presented to the appropriate administrative agency a claim that meets the specific statutory requirements as to its form, content, and timing." Millares Guiraldes, 137 F.3d at 719; see 28 U.S.C. § 2675(a) ("An action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the claim to the appropriate Federal agency."). If a claimant does not exhaust her administrative remedies, she is "foreclose[d]" from invoking the FTCA to secure jurisdiction over the United States. Millares Guiraldes, 137 F.3d at 719; see Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (characterizing the exhaustion requirement as a "jurisdictional" prerequisite to suit that "cannot be waived") (citations omitted).
The exhaustion requirement requires a claimant to "present" her claim "to the Federal agency whose activities gave rise to the claim," 28 C.F.R. § 14.2(b)(1), thereby giving the agency notice of the claim. However, the FTCA implementing regulations also provide a mechanism by which an FTCA claimant may satisfy the exhaustion requirement even if she has not submitted her claim to the correct agency: "When [an FTCA] claim is presented to [the wrong] Federal agency, that agency shall transfer it forthwith to the appropriate agency, if the proper agency can be identified from the claim." Id. Thus, an FTCA claimant may satisfy the exhaustion requirement by giving either actual notice, by filing a claim directly with the appropriate federal agency, or constructive notice, through a claim misfiled with the wrong agency, provided that the claim provides sufficient information to permit a transfer to the appropriate federal agency. See 55 Motor Ave. Co. v. Liberty Indus. Finishing Corp., 885 F.Supp. 410, 418 (E.D.N.Y. 1994) (plaintiff gave constructive notice of claim to General Services Administration even though claim was actually filed with Department of Justice); Bukala v. United States, 727 F.Supp. 382, 384 (N.D. Ill. 1989) (excusing plaintiff's failure to file a medical malpractice claim with the Veterans' Administration because plaintiff had timely filed her claim with the EEOC, and, had the EEOC exercised "due diligence," the claim would have been transferred to the correct agency). However, regardless of whether plaintiff gives actual or constructive notice of her claim, the notice must be written and include "the circumstances of the underlying incident to enable [the appropriate agency] to investigate the claim and respond by settlement or defense." Blue v. United States, 567 F. Supp. 394, 397 (D.Conn. 1983), citingAdams v. United States, 615 F.2d 284, 289 (5th Cir. 1980).
Although the complaint only seeks relief on one cause of action, medical malpractice, the cause of action actually contains two separate, independent claims — first, that the Army injured plaintiff by failing to diagnose her colon cancer, and second, that Bronx VA injured plaintiff through a similar failure. (Pl. Mem. 2-4 (describing the history of plaintiff's medical treatment by the Army); id. 5 (same, with respect to Bronx VA).) Thus, because both the Army's and Bronx VA's activities "gave rise" to her claim, plaintiff was required to exhaust all administrative remedies with both the Army and the Department of Veterans Affairs in order to satisfy the FTCA exhaustion requirement. See Mosseri v. Fed. Deposit Ins. Corp., 924 F.Supp. 605, 607-08 (S.D.N.Y. 1996) (requiring plaintiff, who claimed injury by both the Federal Deposit Insurance Corporation and the General Services Administration, to satisfy exhaustion requirement with respect to both agencies), rev'd in part on other grounds, 104 F.3d 356 (2d Cir. 1996).
It is unclear whether a claim of medical malpractice against the Army is required to be filed with the Army itself or simply with the Department of Defense. Compare Bembenista v. United States, 866 F.2d 493, 498 (D.C. Cir. 1989) (appropriate federal agency for medical malpractice claim against the Army was the Army itself), with Dolan v. United States Army, No. 98 Civ. 5110, 1999 WL 199012, at *2 (S.D.N.Y. Apr. 9, 1999) (assuming, but not deciding, that plaintiff's negligence claim against the Army could be filed with the Department of Defense). However, as discussed infra, because plaintiff failed to file any claim alleging Army malpractice, either with the Army, the Department of Defense, or any other federal agency, it is unnecessary to decide where the claim should most properly have been filed.
While plaintiff did file an administrative claim with the Department of Veterans Affairs (Def. Exh. 17), she has neither pled nor proven that she filed a claim with the Army. Thus, plaintiff did not give the Army actual notice of her claim. (See Rouse Aff. ¶ 2.) In addition, the administrative claim plaintiff filed with the Department of Veterans Affairs makes no reference to any alleged medical malpractice by the Army, and only refers to her treatment at Bronx VA. (Def. Exh. 17 (attributing "the cause of the progression of her disease and the delay in diagnosis" to the "malpractice and negligence" of Bronx VA).) Because plaintiff's claim makes no reference to any Army malpractice, the Department of Veterans Affairs could not possibly have transferred plaintiff's claim to the Army. Therefore, the Army did not receive constructive notice of plaintiff's claim.
28 C.F.R. § 14.2 also provides that "[w]hen more than one Federal agency is or may be involved in the events giving rise to the claim, an agency with which the claim is filed shall contact all other affected agencies [and] designate the single agency which will thereafter investigate and decide the merits of the claim." Id. at (b)(2). Thus, had plaintiff included in her administrative claim any allegations of medical malpractice by the Army, the Department of Veterans Affairs may have been required to share plaintiff's claim with the Army, and therefore plaintiff could have satisfied the FTCA exhaustion requirement. However, since it is undisputed that plaintiff's administrative claim does not refer to any alleged malpractice by the Army, § 14.2(b)(2) is inapplicable to her claim. See also 28 C.F.R. § 14.2(c) (requiring a claimant who presents a claim "to more than one agency [to] identify each agency to which the claim is submitted at the time each claim is presented").
Thus, plaintiff provided no notice of her claim against the Army before filing this suit, either in her claim with the Department of Veterans Affairs or in an independent claim with the Army. Because the Army never received notice of plaintiff's claim, the Army was never able to deny her claim prior to her bringing suit in this Court. See 28 U.S.C. § 2675(a) (requiring an FTCA plaintiff's claim to be "finally denied by the agency in writing" before plaintiff may bring suit against the United States). Thus, plaintiff did not exhaust her administrative remedies with the Army.
Allowing plaintiff to proceed on her claim against the Army without first providing the Army with the opportunity to consider her claim would contravene the purposes of the FTCA's exhaustion requirement. See Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir. 1983) (finding that the goal of the FTCA exhaustion requirement is to "provide a procedure under which the government may investigate, evaluate and consider settlement of a claim"). Therefore, plaintiff is "foreclose[d]" from invoking the FTCA to pursue her medical malpractice claim against the Army, and the Court lacks jurisdiction to hear that claim. See In re Consolidated U.S. Atmospheric Testing Litig., 820 F.2d 982, 999-100 (9th Cir. 1987) (rejecting medical malpractice claim where plaintiff filed administrative claim with the Department of Energy and not the agency that controlled the relevant medical facility, the Department of Defense, and the Department of Defense did not receive notice of plaintiff's claim).
Accordingly, defendants' motion for summary judgment on plaintiff's claim of malpractice by doctors employed by the Army is granted.
Because summary judgment must be granted on this ground, it is unnecessary to address defendants' argument that plaintiff's claim against the Army is barred by the Feres doctrine. See Feres v. United States, 340 U.S. 135 (1950). Cf. Brooks v. United States, 337 U.S. 49 (1949).
III. FTCA's Statute of Limitations
Although plaintiff failed to exhaust her administrative remedies against the Army, there is no dispute that she successfully exhausted her administrative remedies against Bronx VA by filing a claim with the Department of Veterans Affairs. Nevertheless, defendants argue that plaintiff's suit is barred because plaintiff failed to file her administrative claim within the applicable statute of limitations. However, because the accrual date of plaintiff's cause of action presents a genuine issue of material fact, the Court cannot find as a matter of law that plaintiff's suit is time-barred.
The FTCA provides 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). Plaintiff filed an administrative claim with the Department of Veterans Affairs concerning her treatment by Bronx VA on October 31, 2001. Therefore, her claim against Bronx VA is untimely if it accrued prior to October 31, 1999. See Adams v. U.S. Dep't of Housing and Urban Dev., 807 F.2d 318, 321 (2d Cir. 1986) (finding that the FTCA's two-year statute of limitations is "jurisdictional and cannot be waived").
Federal law determines the accrual date of an FTCA claim. Syms v. Olin Corp., 408 F.3d 95, 107 (2d Cir. 2005). "Ordinarily, a plaintiff's FTCA claim accrues at the time of injury." Kronisch v. United States, 150 F.3d 111, 121 (2d Cir. 1998), citing Barrett v. United States, 689 F.2d 324, 327 (2d Cir. 1982). However, in medical malpractice cases, accrual "may be postponed until plaintiff has or with reasonable diligence should have discovered the critical facts of both his injury and its cause." Barrett, 689 F.2d at 326. The goal of the diligent-discovery rule is to "arm" plaintiff with sufficient information such that she "can protect [her]self by seeking advice in the medical and legal community." Kubrick, 444 U.S. at 123. But see Mix v. Del. and Hudson Ry. Co., 345 F.3d 82, 86 (2d Cir. 2003) (holding that accrual is not postponed until plaintiff learns that her injury was "negligently inflicted"), citingKubrick, 444 U.S. at 120-25. Until that time, plaintiff is considered to be "blamelessly ignoran[t]" of her injury, and her cause of action does not accrue. Urie v. Thompson, 337 U.S. 163, 170 (1949). Thus, the accrual determination in an FTCA medical malpractice case is not guided by a legal standard, but a factual one — accrual occurs when plaintiff knows or should know, through the exercise of reasonable diligence, of the fact and cause of her injury, thereby giving rise to a duty to inquire.
Defendants argue that the cause of action in failure to diagnose claims accrues when a plaintiff receives the correct diagnosis. However, there is no per se rule that a correct diagnosis creates an immediate duty to inquire about the cause of the injury, or provides plaintiff with immediate knowledge of her injury. See Arvavo v. United States, 766 F2d 1416, 1422 (10th Cir. 1985) ("We do not intend to imply that in every failure to diagnose, treat, or warn case the plaintiff's cause of action accrues at the time the plaintiff receives a diagnosis different from a previous diagnosis and is aware that he or she has been injured."). The Court must consider the "critical facts" of plaintiff's claim to determine when plaintiff's duty to inquire actually arose, whether it was immediately upon diagnosis or at a later date, just as it must do in other medical malpractice cases.
It is undisputed that plaintiff discovered she had colon cancer on October 25, 1997. (Pl. Dep. 150.) However, the injury in this case is not the cancer itself, but its "grow[th]" after Bronx VA failed to diagnose it (Pl. Dep. 364), which required plaintiff to undergo not only major surgery to remove the cancer, but a hysterectomy as well. Thus, plaintiff claims that Bronx VA's failure to diagnose her cancer in 1997 resulted in a much more serious condition than plaintiff would have faced had her problem been correctly diagnosed. (Def. Exh. 17 ("As a direct result of the malpractice and negligence of [Bronx VA], . . . [plaintiff is unable] to bear children. In addition she has a diminished life expectancy.").) Accordingly, plaintiff's cause of action accrued, not when plaintiff knew that she had colon cancer, but when plaintiff knew or should have known that her cancer had existed at the time of, and had progressed since, her treatment at Bronx VA. See Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir. 1983) ("[I]t is only when the patient becomes aware or through the exercise of reasonable diligence should have become aware of the development of a pre-existing problem into a more serious condition that his cause of action can be said to have accrued for purposes of [the FTCA].").
Plaintiff claims that she did know that her cancer had existed at the time of, and had progressed since, her treatment at Bronx VA until November 21, 1999, when she met with her surgeon for her second post-operative visit. Plaintiff argues that, until November 21, 1999, she was "blamelessly ignoran[t]" of her injury, and therefore her claim did not accrue until that date. Thus, the relevant inquiry is not when plaintiff actually knew, but when she should have known, that Bronx VA had failed to diagnose her cancer. In determining when plaintiff should have known that Bronx VA had failed to diagnose her cancer, the Court must consider whether a reasonable person, who possessed the same information as plaintiff, would have known of her injury. See Mendez v. United States, 732 F.Supp. 414, 424 (S.D.N.Y. 1990) ("The issue of reasonable diligence is determined by an objective standard that measures the actions of a reasonable person in plaintiff's position armed with the same information.") (citations omitted).
Although less than a month passed between her October 25 diagnosis and November 21 post-operative visit, this is a distinction with a difference — if plaintiff's duty to inquire did not arise until November 21, then her administrative claim with the Department of Veterans Affairs was timely filed. In contrast, if it was unreasonable for plaintiff to neither know about her injury nor inquire into its cause on October 25, then her administrative claim was not timely filed, and her case is time-barred.
Defendants argue that a reasonable person in plaintiff's position would have known immediately upon diagnosis on October 25, 1999, that her cancer was a pre-existing condition that Bronx VA had failed to diagnose in 1997, and that her cancer had progressively worsened over the two-plus years since she visited Bronx VA. Thus, defendants argue that plaintiff's "ignorance" of her injury was not "blameless."
Defendants make two principal arguments against plaintiff's blameless ignorance. First, defendants argue that, because plaintiff had professional experience as a medical assistant and medical technician in various Army facilities, including a gastro-intestinal clinic (Pl. Dep. 250), she was familiar with the symptoms of colon cancer. Therefore, defendants argue that a reasonable person in her position would have known at the time of diagnosis that her cancer was the same condition that she had in 1997. Second, defendants argue that, because plaintiff suspected that she had colon cancer "even before she left active duty in 1996" (Def. Mem. 14), a reasonable person in her position would have known immediately upon diagnosis that this was the same condition that led her to visit Bronx VA in 1997. Thus, defendants argue that the diligent-discovery rule should not apply to plaintiff because she was already "armed" with sufficient facts immediately upon diagnosis to create a duty to inquire into the legal cause of her injury; accordingly, no additional discovery was necessary for plaintiff to determine the factual predicate of her claim.
Defendants may be correct that a reasonable person in plaintiff's position, who had experience working in a gastro-intestinal clinic, would be armed with enough knowledge to know the symptoms of colon cancer. However, defendants' argument assumes too much about what a reasonable person in plaintiff's position would believe about the progression of colon cancer. The fact that plaintiff had some experience in the medical field does not inevitably lead to the conclusion that she would know that colon cancer could develop over a period of several years, or that it would manifest itself with evolving symptoms during that time. (Pl. Mem. 15 ("The plaintiff's symptoms in the fall of 1999 were different than those with which she presented . . . at the Bronx V.A. She had diarrhea and flank pain in 1999 as opposed to constipation and abdominal pain in . . . the Bronx V.A.").) Instead, a reasonable factfinder could determine that, in the two-plus intervening years between plaintiff's July 1997 visit to the Bronx VA and her October 1999 diagnosis, her condition altered to the point that it was objectively reasonable for plaintiff to believe that her cancer was not a pre-existing condition that could be tracked as far back as July 1997. Indeed, defendants concede that plaintiff's symptoms in October 1999 were different from those that she had presented to Bronx VA. (Def. Reply 8 n. 3.) Moreover, a factfinder could determine that plaintiff reasonably believed at the time of her diagnosis that her gastrointestinal problems in 1997 were a result of her 1994 cesarean section (Pl. Aff. ¶ 5; id. ¶ 21 ("I believed my problems were due to poor muscle tone in my stomach.")), or were related to her lifestyle in the Army (Pl. Dep. 252), and that her colon cancer was an entirely new condition.
In addition, the fact that plaintiff "suspected" that she had colon cancer while she was in the Army does not mean that plaintiff must have had the same belief in October 1999, several years after her discharge. Although plaintiff claims that she repeatedly visited government doctors to determine the cause of her condition, she recalls only one specific occasion when she asked a doctor whether she might have colon cancer. (Pl. 250.) Plaintiff might have suspected that she had colon cancer at that time; however, "[a] claim does not accrue when a person has a mere hunch, hint, suspicion, or rumor of a claim." Kronisch, 150 F.3d at 121.
Moreover, although suspicions can "give rise to a duty to inquire," id., a reasonable trier of fact could find that plaintiff's suspicion was undermined by her reliance on Bronx VA's assurances that she did not have colon cancer. According to plaintiff, the medical staff at Bronx VA assured her that her gastrointestinal problems were attributable to her need for an "A P repair," which would fix the "poor muscle tone in [her] stomach." (Pl. Aff. ¶¶ 21-22.) The assurances plaintiff received from Bronx VA might have been especially persuasive in convincing plaintiff that she did not have colon cancer, considering that they were the same assurances that she had received from the Army. (Pl. Aff. ¶ 17.) Although prior assurances do not, in and of themselves, toll the statute of limitations, see Oberlin v. United States, 727 F.Supp. 946, 948 (E.D. Pa. 1989), such assurances support plaintiff's argument that a reasonable person in her position would not have known immediately upon diagnosis that her cancer had existed in July 1997. See Augustine, 704 F.2d at 1078 (finding that prior assurances are relevant to the determination of whether plaintiff "through the exercise of reasonable diligence should have discovered" that defendants' malpractice "led to his deteriorating condition").
Defendants argue that the government's prior assurances are not relevant here because they were not contemporaneous with the accrual of plaintiff's claim. (Def. Reply 4.) However, the relevant inquiry is not whether the assurances are contemporaneous with accrual, but whether "a sufficient time has passed to alert" plaintiff that the assurances were inaccurate.Rispoli v. United States, 576 F.Supp. 1398, 1403 (E.D.N.Y. 1983);Prendeville v. United States, 651 F.Supp. 867, 868-69 (S.D.N.Y. 1986) (finding factual question on accrual where doctors had misled plaintiff about his condition). Given the consistency of her doctors' assurances, which had been provided by both Army and Bronx VA doctors (compare Pl. Aff. ¶ 17 ("I was placed on a waiting list for . . . an `A P repair.'"), with (Pl. Aff. ¶ 23 ("I was placed on a waiting list for the A P repair.")), whether such a "sufficient time" passed between the prior assurances and plaintiff's diagnosis to alert plaintiff that the assurances were incorrect is a question of fact best determined at trial.
Defendants also ignore the impact of the passage of time on the reasonableness of plaintiff's "blameless ignorance." Plaintiff visited Bronx VA in July 1997; she was not diagnosed with colon cancer until October 1999. A trier of fact could find that a reasonable person in plaintiff's position would not, immediately upon diagnosis, track her illness back more than two years and instantly determine that this was indeed the same condition that she had at that time, that the condition must have significantly worsened during that time, and that Bronx VA had failed to diagnose her cancer more than two years ago.
A person who is diagnosed with cancer reasonably might be expected to know that her condition had existed for some time before diagnosis, especially if she had suffered symptoms during that time. A genuine issue of fact exists, however, on this record, as to when this particular plaintiff, under all the circumstances of the case, reasonably should have known that the cancer had existed for more than two years, and thus could have been detected by a reasonably skilled physician in 1997. See Arvayo, 766 F.2d at 1422. The combination of evolving symptoms, prior assurances, and the two-plus-year time lapse between Bronx VA's failure to diagnose plaintiff's cancer and her actual diagnosis may lead a trier of fact to determine that plaintiff was not "armed" with sufficient information immediately upon diagnosis to create knowledge of, or a duty to inquire into the cause of, her injury.
Thus, there remains a disputed issue of material fact as to whether, as of October 25, 1999, plaintiff should have known that she had been injured by Bronx VA's failure to diagnose her colon cancer. The Court makes no determination either way whether a reasonable person in plaintiff's position, with her medical history and professional experience, should have known immediately upon diagnosis that her colon cancer had existed when she visited Bronx VA, and that it had progressed into a more serious condition since that time. The Court only finds that a reasonable trier of fact could determine that it was not unreasonable for plaintiff to neither know nor attempt to know of her injury immediately upon diagnosis. See,e.g., Arvayo, 766 F.2d at 1422 ("The question whether a plaintiff exercised reasonable diligence in inquiring as to the cause of his injury will of course vary with the facts of each particular case.").
Defendants also argue that allowing plaintiff to pursue her claim would eviscerate the statute of limitations because it would allow plaintiff to "possibly toll the statute indefinitely." Arvayo, 766 F.2d at 1422. However, allowing plaintiff to survive summary judgment in this case would not toll the statute of limitations indefinitely — it merely provides plaintiff the opportunity to prove at trial that a reasonable person in her position would not have known, immediately upon diagnosis, of the "fact or cause of [her] injury." Id. The statute of limitations may be tolled only as long as plaintiff can prove that she acted reasonably given the "circumstances" of her situation. Barren by Barren v. United States, 839 F.2d 987, 998 (3d Cir. 1988).
Factual disputes as to whether plaintiff was actually "blamelessly ignorant" about the nature and cause of her injury when she was diagnosed with colon cancer "preclude [the Court] from disposing of this matter without a trial on these issues."Barrett, 689 F.2d at 330. Accordingly, the Court cannot conclude as a matter of law that plaintiff's FTCA claim accrued on October 25, 1999.
IV. "Employee" Under The FTCA
Finally, defendants argue that plaintiff's claim against Bronx VA is partially barred by sovereign immunity. Specifically, defendants argue that the FTCA is inapplicable to plaintiff's claim against Bronx VA as it pertains to the alleged malpractice of her attending physician at Bronx VA because her attending physician was an independent contractor and not a government employee, and the FTCA does not waive the government's immunity from claims against independent contractors. However, because a reasonable factfinder could find that plaintiff's physician was an employee of Bronx VA and not an independent contractor, plaintiff's claim against Bronx VA for the alleged malpractice of her attending physician is not barred by sovereign immunity as a matter of law.
The FTCA waives the federal government's immunity with respect to claims for personal injury "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b). The FTCA defines "[e]mployee of the government" as any "officers or employees of any federal agency, . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." Id. § 2671. "Federal agency" is defined to include "the executive departments, . . . the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States." Id. (emphasis added). Thus, the Court has subject matter jurisdiction over plaintiff's claim if her alleged injury was caused by an government employee, but not if the injury was caused by an independent contractor. "Whether [Dr. Schonholz] is a government employee or an independent contractor is a question of federal law." Leone v. United States, 910 F.2d 46, 49 (2d Cir. 1990), citing Logue v. United States, 412 U.S. 521, 528 (1973).
Plaintiff's claim stems in part from the alleged malpractice committed by Dr. David Schonholz, a gynecologist she met with at Bronx VA in July 1997. Dr. Schonholz was assigned by Mount Sinai Medical Center ("Mount Sinai") to Bronx VA to provide gynecological services pursuant to a contract between Bronx VA and Mount Sinai. (Allen Aff. ¶¶ 2, 3; see id. Exh. A (characterizing Dr. Schonholz as a "Scarce Medical Specialist").) Defendants argue that, because Dr. Schonholz was assigned to work at Bronx VA pursuant to a contract between Bronx VA and Mount Sinai, he was an independent contractor and not a government employee. Therefore, defendants argue that the federal government has not waived its immunity with respect to any injuries arising from Dr. Schonholz's alleged malpractice. Conversely, plaintiff argues that the contract between Bronx VA and Mount Sinai provided Bronx VA with enough control over Dr. Schonholz to render him a government employee.
Plaintiff also claims that other medical staff members at Bronx VA, such as Nurse Practitioner Cheryl Ann Adams, also contributed to Bronx VA's alleged malpractice. (Pl. Aff. ¶¶ 21-22; Comp. ¶¶ 4-6.) It is undisputed that the other medical staff members named by plaintiff in her complaint are employees, and not independent contractors, of Bronx VA. Thus, defendants' argument is only relevant to plaintiff's claim as it pertains to her allegations of malpractice by Dr. Schonholz.
Although Dr. Schonholz was not directly under contract with Bronx VA, it is undisputed that Bronx VA was capable of entering into a contract with Mount Sinai for Dr. Schonholz's services, and that Dr. Schonholz was bound by the terms of the contract between Mount Sinai and Bronx VA. See 38 U.S.C. § 7409 ("The Secretary [of Veterans Affairs] may enter into contracts with . . . [a]ny . . . group or individual capable of furnishing such scarce medical specialist services.").
Mount Sinai's contract with Bronx VA is not unambiguous about the relationship between "Scarce Medical Specialists" such as Dr. Schonholz and Bronx VA: "The parties agree that . . . personnel [who work under the contract] shall not be considered [Bronx] VA employees for any purpose." (Allen Aff. Exh. A ¶ 8.) However, contract language that defines an individual's employment status is not controlling as to whether the individual is a government employee for purposes of the FTCA. Tivoli v. United States, No. 93 Civ. 5817, 1996 WL 1056005, at *2 (S.D.N.Y. Sept. 27, 1996),aff'd, 164 F.3d 619 (2d Cir. 1998); see Witt v. United States, 462 F.2d 1261, 1263-64 (2d Cir. 1973) ("[T]he statutory language [of the definition of employee] was drafted to have an expansive reach, and should be applied with an eye to general agency law rather than to the formalities of employment contracts.") (citations omitted). Instead, the determination of whether a person working under a contract is a government employee pursuant to the FTCA is contingent on the "degree of the [g]overnment's authority to control" the person's "physical conduct." Tivoli, 1996 WL 1056005, at *2, citing Logue, 412 U.S. at 527. See Leone, 910 F.2d at 50 ("The question is . . . whether [a contractor's] day-to-day operations are supervised by the Federal Government.") Thus, the relevant inquiry here is whether "the performance of" Dr. Schonholz's contract was sufficiently controlled by Bronx VA to render Dr. Schonholz an employee of Bronx VA for purposes of the FTCA. Logue, 412 U.S. at 527, citing Restatement (Second) of Agency § 2 (1958).
Because the nature of the medical field requires physicians to enjoy considerable autonomy in practice, determining the degree of control necessary to create an employment relationship in a medical malpractice claim poses a unique set of difficulties.See, e.g., Lilly v. Fieldstone, 876 F.2d 857, 859 (10th Cir. 1989) ("It is uncontroverted that a physician must have discretion to care for a patient and may not surrender control over certain medical details.") Thus, other Circuits have crafted a "modified" control test to apply to medical malpractice claims, in which the threshold of control is lowered in order to allow room for the physician's independent judgment. Quilco v. Kaplan, 749 F.2d 480, 484-85 (7th Cir. 1984). Although this Circuit has declined to apply a "modified" control test and held that the agency principles that apply to general independent contractor determinations apply with equal force to physicians, Leone, 910 F.2d at 49, regardless of the label applied to the test, the relevant inquiry is substantially the same: whether Bronx VA sufficiently controlled Dr. Schonholz's "day-to-day operations" so as to render him an employee of Bronx VA. See Tivoli, 1996 WL 1056005, at *2 (finding the determination of whether a physician is an independent contractor to be "difficult" because "control over the exercise of a physician's work is limited by the physician's own moral and ethical obligations"). Cf. Lilly, 876 F.2d at 859 (characterizing the labeling of the test as "strict" or "modified" as "not determinative").
Defendants argue that Bronx VA did not exercise a sufficient degree of control over Dr. Schonholz to render him an employee of Bronx VA. Defendants principally argue that (1) Bronx VA did not pay Dr. Schonholz, and (2) Dr. Schonholz "ma[de] clinical decisions according to [his] independent judgment" without direct supervision by Bronx VA. (Def. Mem. 19-20.) However, each of these arguments ignores the relevant law and contract language in this case.
The fact that Dr. Schonholz was not paid by Bronx VA is not determinative here. The FTCA specifically provides that an individual's employment status under the FTCA is not contingent on compensation by the government. 28 U.S.C. § 2671. Just as salary payment by the government does not, in and of itself, establish an employee-employer relationship, see Logue, 412 U.S. at 529-30, nonpayment by the government similarly does not establish an independent contractor relationship. The relevant inquiry is whether the government sufficiently controlled the individual's "day-to-day operations," not whether the government did or did not pay the individual's salary. See Ezekiel v. Michel, 66 F.3d 894, 900 (7th Cir. 1995) (characterizing the fact that the physician was not paid by the government to be "of no moment" to the determination of whether the physician was an independent contractor or employee).
In addition, although Bronx VA did not directly pay Dr. Schonholz's salary, the contract specified the circumstances under which payment to Mount Sinai would be made for Dr. Schonholz's services. (Allen Aff. Exh. A § H(6).) Thus, Bronx VA exercised indirect control over Dr. Schonholz's salary.
Defendants' second argument goes to the heart of the test here, but still cannot establish as a matter of law that Dr. Schonholz was not an employee for purposes of the FTCA. Defendants argue that Bronx VA did not control Dr. Schonholz's "clinical decisions," which were made "according to [his] independent judgment." (Def. Mem. 20 (citing Schonholz Dep. 12, 20).) However, the contract between Bronx VA and Mount Sinai provides that "[t]he services to be performed by the Contractor will be under the direction of the Chief [of Bronx VA]." (Allen Aff. Exh. A § H(1)(d) (emphasis supplied).) Thus, defendants' argument that Dr. Schonholz did not have a "direct supervisor" and that Dr. Schonholz had free reign over his clinical decisions completely ignores this contract provision. Even if Dr. Schonholz did not subjectively believe that he was subject to oversight by Bronx VA, it is clear that both Bronx VA and Mount Sinai intended for Dr. Schonholz to report to the Chief of Bronx VA. Cf. Taracido v. United States, No. 93 Civ. 8266, 1995 WL 217525, at *2 (S.D.N.Y. Apr. 12, 1995) (finding that, although contract language is "not dispositive" in determining the employment relationship, it may "provide strong evidence of the parties' intentions").
Defendants' argument also ignores several other provisions of the contract in which Bronx VA retained a great deal of control over Dr. Schonholz's "day-to-day operations." For example, Bronx VA requires Scarce Medical Specialists to perform their services "in accordance with VA policies and procedures and the regulations of the medical staff By-laws of the VA facility." (Allen Aff. Exh. A § H(1)(c).) See Costa v. U.S. Dep't of Veterans Affairs, 845 F.Supp. 64, 68 (D.R.I. 1994) (finding the fact that the physician "was at all times bound by the Hospital by-laws, policies and procedures" weighed in favor of an employee-employer relationship between the physician and hospital). In addition, all personnel assignments by Mount Sinai were subject to the approval of the Bronx VA Chief of Staff (Allen Aff. Exh. A § H(4); thus, Dr. Schonholz could only work at Bronx VA if the head of Bronx VA approved his placement.
Moreover, Bronx VA controlled not only Dr. Schonholz's work hours and vacation time (id. § H(5)), but where he worked, who he saw, and what he did during those hours. See Taracido, 1995 WL 217525, at *6 (holding physician to be government employee as a result of government's control over, inter alia, the physician's work hours). Specifically, Bronx VA required Dr. Schonholz to "provide a "GYN exam, pap smear, [and] breast exam." (Id. § C(3)(a).) In addition, the contract required Dr. Schonholz to provide his services at Bronx VA, and to perform all elective major/minor surgery at Bronx VA. (Id. at § C(1), (3)(b).) Thus, Dr. Schonholz used the equipment and facilities of Bronx VA when seeing patients and performing certain surgeries under the contract. Dr. Schonholz also could not control who he saw at Bronx VA — he was required to see "[a]ll female patients, . . . including long term care patients." (Id. § C(3)(a).) See Costa, 845 F.Supp. at 68 (finding the fact that the physician "was required to see any patient that came to the clinic on the days he was attending" to be relevant to the court's determination of whether the physician was a government employee). Thus, Bronx VA arguably controlled not only "the end result" of the medical care provided by Dr. Schonholz, but "the manner and method of reaching the result" as well. Taracido, 1995 WL 217525, at *2.
The fact that Dr. Schonholz only provided services to Bronx VA on a temporary basis is not relevant in deciding whether he was an "employee" for purposes of the FTCA. 28 U.S.C. § 2671 (defining "[e]mployee of the government" as any "officers or employees of any federal agency, . . . temporarily or permanently in the service of the United States"). See Quilco, 749 F.2d at 487 (finding that Congress did not intend that immunity for government employees under the FTCA "to be determined by whether the physician . . . seeking its protection was a career or temporary employee"). Thus, the relevant inquiry is whether Dr. Schonholz was an employee of Bronx VA at the time he treated plaintiff, and not the length of his tenure.
Although the contract provides that elective major surgery must be performed at Mount Sinai and not Bronx VA (Allen Aff. Exh. A § C(3)(c)), the contract controls the location of and participants in such surgery. (Id.) Moreover, the contract, and not Dr. Schonholz, determined which surgeries were classified as "major." (Id.)
Compare Allen Aff. Exh. A § H(3)(a), with Leone, 910 F.2d at 50 (finding physicians to be independent contractors where physicians were "free to examine as few or as many applicants as he desires").
See also Allen Aff. Exh. A § C(2) ("Gynecologist will also provide consultation as required and referred by Nurse Practitioner."); id. § C(3) ("The [Scarce Medical Specialist] must be present at the VA facility and must actually be performing the required services for the period specified in the contract. . . ."); id. § H(1)(b) (requiring Scarce Medical Specialists to use personnel "provided by [Bronx VA]").
On this record, a reasonable factfinder could conclude that Dr. Schonholz qualifies under the FTCA as an "employee" of Bronx VA as a matter of law. Accordingly, summary judgment that plaintiff's claim against Bronx VA for the alleged malpractice of Dr. Schonholz is barred by sovereign immunity cannot be granted.
Defendants also argue that the fact that Bronx VA does not provide malpractice insurance to Scarce Medical Specialists weighs in favor of classifying Dr. Schonholz as an independent contractor. See Taracido, 1995 WL 217525, at *2 ("Factors relevant to th[e] inquiry include . . . who provides liability insurance [to the physician].") However, the relevant test is whether, upon consideration of the entire contract, Bronx VA exercised enough control over Dr. Schonholz's "day-to-day operations" to render him an employee. Id. at *6 (weighing the relevant facts and finding a question of fact as to whether physician was an employee of an Army hospital, notwithstanding significant evidence that physician was an independent contractor). No one factor is dispositive; thus, even though Bronx VA did not provide Dr. Schonholz with malpractice insurance, the remaining provisions of the contract arguably confer enough control over Dr. Schonholz to render him an employee of Bronx VA.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is granted with respect to plaintiff's claim against the Army and denied with respect to plaintiff's claim against Bronx VA. The complaint is dismissed as against all defendants other than the United States.
SO ORDERED.