Gable v. United States of America

MOTION for Summary Judgment

D.D.C.March 3, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RICHARD MAURICE GABLE, ) ) Plaintiff, ) ) vs. ) C.A. No. 1:12-cv-01634-RMC-GMH ) UNITED STATES OF AMERICA, ) ) Defendant. ) ___________________________________ ) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant United States of America, by and through undersigned counsel, respectfully moves for summary judgment on Plaintiff’s claims under the Federal Tort Claims Act. This motion is accompanied by a memorandum of law, statement of undisputed facts, supporting declaration, exhibits, and a proposed order. Dated: March 3, 2017 Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar #415793 United States Attorney DANIEL F. VAN HORN, D.C. Bar #924092 Chief, Civil Division /s/ Jason T. Cohen JASON T. COHEN, ME Bar #004465 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2523 Jason.Cohen@usdoj.gov Attorneys for Defendant Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RICHARD MAURICE GABLE, ) ) Plaintiff, ) ) vs. ) C.A. No. 1:12-cv-01634-RMC-GMH ) UNITED STATES OF AMERICA, ) ) Defendant. ) ___________________________________ ) DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT INTRODUCTION The United States of America, by and through undersigned counsel, hereby moves this Court to grant summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on all remaining tort claims. Plaintiff Richard Maurice Gable (“Gable” or “Plaintiff”) brings this action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, alleging negligence and medical malpractice on the part of employees of the U.S. Department of Veterans Affairs (“VA”). As a matter of law and undisputed fact, Gable’s claims are time-barred because Gable failed to properly exhaust administrative procedures in two ways: (1) Gable failed to submit notice to the VA regarding any of the claims within two years of the alleged claims’ accrual; and (2) Gable never submitted an administrative claim alleging that the VA failed to perform properly the September 16, 2006, above-the-knee amputation of his left leg or that the amputation surgery wound was negligently cared for by and treated by the VA. Additionally, this Court lacks jurisdiction over several of Gable’s claims pursuant to the provisions of the Veterans Judicial Review Act (“VJRA”), 38 U.S.C. § 511(a). Therefore, this Court should grant summary judgment in favor of Defendant and should dismiss Plaintiff’s case with prejudice. Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 2 of 24 2 FACTUAL AND PROCEDURAL BACKGROUND I. Factual Background Defendant hereby incorporates its Statement of Material Facts Not in Dispute, the accompanying declaration, and the exhibits referenced therein. II. Procedural Background On March 29, 2012, Plaintiff filed a Complaint in the United States Court of Federal Claims against the United States alleging claims under the FTCA for negligent infliction of severe emotional distress, medical malpractice, gross negligence, and unauthorized medical treatment, as well as claims under the Sixth Amendment of the U.S. Constitution and the Americans with Disabilities Act (“ADA”). ECF No. 1, p. 12. Within the Complaint, Plaintiff demands monetary damages of $5,000,000.00. Id. p. 14. The Complaint alleges that gross negligence and medical malpractice at the VA Medical Center “caused the unauthorized amputation of [Gable’s] left leg,” and that Gable was subjected to “inhumane conditions and neglect . . . for ten months while . . . in the care of the VA Medical Center.” Compl. p. 2. It also alleges that Gable “was hospitalized in January 2006 at the VA Medical Center for the replacement of his left knee, and instead the entire leg was amputated without authorized consent! The operation was for a knee replacement only; and Mr. Gable should therefore have gone home soon after, but he was never released due to a series of violations and abuses this Federal claim is based around.” Id., pp. 2-3 (emphasis in original). In addition, the Complaint specifies that, “[o]n August 23rd, 2006 [Gable’s] leg was removed without the proper authorization or knowledge of his trustee who was his son;” that “a Dr. Reuben A. Bueno had to perform 2 additional operations to fix his leg after it had been amputated” because the leg “was cut inappropriately;” and that Gable was “tied to a bed, drugged, and not on the proper mental Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 3 of 24 3 health medication he was supposed to be on the entire time he was hospitalized at the VA Medical Center,” “was placed in a recovery room without wheelchair access,” and “never allowed a shower or bath for ten months and 19 days.” Id., pp. 3-4. On July 23, 2012, the Court of Federal Claims held that it lacked jurisdiction to adjudicate Plaintiff’s claims, and transferred the case to this Court. ECF No. 1. Within its decision, the Court of Federal Claims declined to address the timeliness of Plaintiff’s Complaint under the FTCA’s two-year statute of limitations. Id. p. 7 n.4. Subsequently, the United States filed two motions to dismiss. See ECF Nos. 13, 44. On March 21, 2013, the Court denied the United States’ first motion, finding that it “is too early to say that Mr. Gable is barred by the FTCA’s statute of limitations.” ECF No. 18, p. 8. On January 5, 2015, the Court granted in part and denied in part the second motion, holding that Plaintiff’s claims based on the Sixth Amendment and the ADA should be dismissed, but that the record was not sufficiently developed to grant the motion with respect to the statute of limitations on the FTCA claims. ECF No. 55, p. 3. On July 31, 2015, the parties filed a Joint LCvR 16.3 Report to the Court, stating that Plaintiff’s FTCA action “alleg[es] that Defendant provided negligent medical care when performing Plaintiff’s knee replacement operation, after which Plaintiff alleges that he developed a staph infection that eventually resulted in partial amputation of Plaintiff’s left leg on August 23, 2006. Plaintiff alleges the amputation was without consent.” ECF No. 63, p. 1. Subsequently, Plaintiff revised his description of the claims to encompass “alleg[ations] that the VAMC provided negligent medical care when it allegedly: (1) failed to properly perform Plaintiff’s total knee replacement surgery in January 2006; (2) provided inadequate post-operative care subsequent to Plaintiff’s knee replacement surgery, including (but not limited to) failing to adequately treat Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 4 of 24 4 Plaintiff’s psychological conditions; (3) failed to obtain informed consent before performing a partial amputation of Plaintiff’s left leg in August 2006; (4) failed to properly perform the partial amputation of Plaintiff’s left leg; and (5) provided inadequate post-operative care after the partial amputation of Plaintiff’s left leg.” ECF No. 68, pp. 1-2; see also ECF No. 70, pp. 1-2. No amended complaint was filed. The parties subsequently engaged in “an exhaustive, cooperative discovery process” with respect to “all paperwork related to this case.” ECF No. 72, p. 1. On October 3, 2016, Plaintiff, then proceeding pro se, filed a motion with the Court arguing that discovery should be focused on whether there was medical necessity for the amputation of his left leg. ECF No. 78, p. 2. In a letter to the Court on December 23, 2016 (ECF No. 81) and at a subsequent hearing on January 24, 2017, Plaintiff indicated his desire for the Court to resolve the issue of the statute of limitations. See ECF No. 84. Accordingly, this Motion for Summary Judgment addresses the outstanding statute of limitations and presentment issues. STANDARD OF REVIEW Where no genuine issue of material fact exists, summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine issue of material fact is one that would change the outcome of the litigation. Id. at 248. “The burden on the moving party may be discharged by ‘showing’ -- that is, pointing out to the [Court] -- that there is an absence of evidence to support the non-moving party’s case.” Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed. Cir. 1987). Once the moving party has met its burden, the non- movant may not rest on mere allegations, but must instead proffer specific facts showing that a genuine issue exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, to avoid summary judgment, the Plaintiff (as the non-moving party) must present Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 5 of 24 5 some objective evidence that would enable the Court to find that Plaintiff is entitled to relief. In Celotex Corp. v. Catrett, the Supreme Court held that, in responding to a proper motion for summary judgment, the party who bears the burden of proof on an issue at trial must “make a sufficient showing on an essential element of [his] case” to establish a genuine dispute. 477 U.S. 317, 322-23 (1986). In Anderson, the Supreme Court further explained that “the mere existence of a scintilla of evidence in support of the Plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the Plaintiff.” Anderson, 477 U.S. at 252; see also Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (the non-moving party is “required to provide evidence that would permit a reasonable jury to find” in its favor). In Celotex, the Supreme Court additionally instructed that the “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). ARGUMENT I. Gable Failed to Comply with the FTCA’s Presentment Requirements for Claims Related to Whether the Amputation Was Done Properly and Whether the VA Provided Proper Post-Operative Care to the Amputation Surgery Wound It is a clearly established principal of federal law that, as sovereign, the United States is absolutely immune from suit and, unless Congress has consented to such cause of action, there is no jurisdiction in any court to entertain such a claim against the United States. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 586 (1941) (“The United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.”). Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 6 of 24 6 The Federal Torts Claim Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq., constitutes a limited waiver of the United States’ sovereign immunity for certain torts of federal employees that are committed within the scope of their employment. Section 2675(a) of the FTCA precludes a claim for “the negligent or wrongful act or omission of any employee of the government . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing.” See 28 U.S.C. § 2675(a). Thus, the “FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993).1 The presentment requirement is only satisfied when a plaintiff meets “a burden of ‘minimal notice’ by submitting to the appropriate agency a written statement ‘sufficiently describing the injury to enable the agency to begin its own investigation’ and containing a ‘sum-certain damages claim.’” Tsaknis v. United States, 517 F. Supp. 2d 295, 298-99 (D.D.C. 2007) (quoting GAF Corp. v. United States, 818 F.2d 901, 920 (D.C. Cir. 1987). The FTCA’s administrative exhaustion requirements “enable[s] the agency to investigate and ascertain the strength of a claim.” GAF Corp., 818 F.2d at 920; see also Odin v. United States, 656 F.2d 798, 805-06 (D.C. Cir. 1981) (noting the presentment requirement was intended to “expedite the fair settlement of tort claims asserted against the United States” (internal quotation marks omitted)). Satisfying the presentment requirement demands consistency between the facts the claimant presents to the agency and the facts he alleges in his complaint. Smith v. United States, 157 F. Supp. 3d 32, 37 (D.D.C. 2016). A claimant “may not ‘present one claim to the agency and 1 In 2015, the Supreme Court held that the two-year and six-month time limitations under the FTCA were not jurisdictional, see United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1638 (1015); however, that decision did not disturb precedent holding that the filing of an administrative claim under 28 U.S.C. § 2675 is a jurisdictional prerequisite to suit, see United States v. Kwai Fun Wong, 134 S.Ct. 2873 (2014); Simpkins v. District of Columbia, 108 F.3d 366, 371 (D.C. Cir. 1997). Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 7 of 24 7 then maintain suit on the basis of a different set of facts.’” Williams v. United States, 932 F.Supp. 357, 361 (D.D.C. 1996) (quoting Deloria v. Veterans Admin., 927 F.2d 1009, 1012 (7th Cir. 1991)); see also Bembenista v. United States, 866 F.2d 493, 499 (D.C. Cir. 1989) (where sexual assault claim was the only tort alleged in the plaintiff’s SF-95s, failure to include allegations of medical malpractice therein barred an FTCA claim of medical malpractice despite fact that plaintiffs submitted more than 400 pages of medical records, transcripts, and documents appended to their SF-95s); Burchfield v. U.S., 168 F.3d 1252, 1257 (11th Cir. 1999) (“Section 2675(a) does not require an agency to undertake an independent search for injuries or theories of liability that are not closely related to the matters described in the claim.”); Bush v. U.S., 703 F.2d 491, 495 (11th Cir. 1983) (holding that administrative claim alleging medical malpractice that contained no challenge to consent form or disclosure of risks did not give notice of claim based on lack of the patient’s informed consent). Accordingly, at a minimum, a claimant must identify the essential facts upon which he intends to rely, and those facts must provide notice of what claims the agency will need to investigate. See Keene Corp. v. United States, 591 F. Supp. 1340, 1347 (D. D.C. 1984) (“Under the FTCA the burden is on [the plaintiff] to provide the government in the notice of claim with ‘sufficient information regarding the nature and merits of [his] claim so far as liability is concerned. [The plaintiff] must provide the factual background . . . for each underlying claim.”) (emphasis added); Murphy v. United States, 121 F. Supp. 2d 21, 27 (D. D.C. 2000) (rejecting a Secret Service agent’s claim for invasion of privacy because the facts alleged in his administrative claim for assault were “markedly different” than the facts necessary for the privacy claim asserted in the District Court).2 2 The D.C. Circuit is accompanied by courts of other federal circuits in concluding that the factual basis for the claim is the essential element to analyze when determining whether an SF- Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 8 of 24 8 In this case, the facts Plaintiff asserted in his SF-95 and accompanying submissions did not provide notice to the VA that Gable had any complaints or claims related to whether the above- the-knee amputation on his left leg was done properly or whether he was provided proper post- operative care for the amputation. In his September 16, 2008, SF-95, Gable wrote “total disregard for my veteran rights” as the basis for his claims, and attached a 6-page letter. Rattray Decl. Exh. A. Gable’s letter begins with a narrative description of a fall and hurt shoulder in 2003 and 2004, incidents which are, on their face, clearly outside the 2-year statute of limitations and irrelevant to the claims in this case. On pages 3-4, Gable states that he entered the VA hospital in January 2006, describes problems with recurring infections, alleged lack of receipt of mental health medication while hospitalized, knee replacement operations that didn’t work, and the amputation of his leg without proper consent. Id. On page 4, Gable also describes the denial of his request to be transferred to Georgetown Hospital for an alternative course of treatment involving an antibiotic sleeve. Id. Lastly, on page 5, Gable alleges that he was never given a shower while hospitalized and was subjected to dirty conditions. Id. The only statements Gable makes regarding post- operative care for the amputation are, on pages 4-5, that he wasn’t given proper medication after he lost his leg, he suffered a fall at one point after the operations, nurses denied him use of his wheelchair, and the Chief of Plastic Surgery was very kind and saved his life. Id. 95 adequately notified the defendant of the potential claims that might be asserted. See, e.g., Murrey v. United States, 73 F.3d 1448, 1452 (7th Cir. 1996) (“Standard Form 95 . . . requir[es] a detailed statement of facts” and “the claim must allege facts describing the incident, which must be sufficiently detailed so that the United States can evaluate its exposure as far as liability is concerned.”); Dixon v. United States, No. CV 114-205, 2015 WL 769656, at *4 (S.D. Ga. Feb. 23, 2015) (To satisfy the FTCA’s presentment requirement, “it suffices if the material facts pertinent to the claim are either expressly set out or so closely related to those stated that the agency may reasonably be expected to uncover them in the course of its investigation.”); Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.1980) (holding that notice is adequate if it “brings to the Government’s attention facts sufficient to enable it thoroughly to investigate its potential liability and to conduct settlement negotiations with the claimant”). Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 9 of 24 9 On or about September 19, 2008, the VA sent Gable a letter requesting more information, including the names of all non-VA healthcare providers who provided care to him since January 2006 and information reflecting any consultation he had with any medical professionals regarding his alleged injuries. Rattray Decl. ¶ 7. Over six months later, on April 2, 2009, Gable submitted a letter response, which he called “a revision to [his] Tort Claim,” and in which he asks to revise his claim from seeking $10 million to seeking $100 million. Rattray Decl. Exh. B. Gable wrote that he “lost a leg that [he] didn’t need to lose,” and that he was not given showers or the “proper care and benefits” while hospitalized. Id. Gable did not state that he wanted to add a claim related to his amputation surgery being performed improperly or that the amputation surgery wound was negligently cared for and treated by the VA. Gable also submitted a third letter and revised SF-95 on March 30, 2010. Rattray Decl. Exh. C. The revised claim form describes the personal injury as “loss of left leg, mental conditions of veteran,” and states the basis of claim to be: “Violation of rights to obtain and receive care under laws that pertain to a 100% Service connected disabled veteran . . . that resulted in the lost [sic] of left leg. Violation of laws that cover a Veterans [sic] right to be notified, be present, and have a legal representative at any official hearing pertaining to Veterans care. Violation of my right to question staff about care and report poor conditions.” Id. Nowhere in Gable’s written submissions that comprise his administrative claim does he identify or even suggest that the quality of the leg amputation surgery was a potential claim or issue for which he might seek damages from the VA. In fact, the only statements in Gable’s written submissions that might relate to how the amputation surgery was performed--as opposed to whether it should have been performed at all--are contained in the April 2009 list of medical providers Gable provided in response to the VA’s September 2008 letter requesting that he provide Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 10 of 24 10 a list of treating physicians, hospitals, and providers he had seen outside the VA health system since January 2006. In response to this request, Gable identified three provider organizations and six individuals, and provided information about some of them, including the following list entries: • Georgetown Hospital--Wound Care Center Jan. 2007 needed additional operation for pain and to remove the bone properly. • Hospital Clinical Santa Maria-San Jose, Costa Rica [I had another operation and it was very successful. While at this hospital I healed in 8 days.] Dr. Serria • Dr. Reubin A. Bueno Chief of Plastic Surgery: He can confirm that I needed to be put back on the proper medication for my mental condition. He also operated on me 2 more times to fix my leg so I could go home. This doctor saved my life and I will always be thankful for the professional way he handled my care. Rattray Decl. Exh. B. On their face, none of these statements contain any language that Gable sought to amend his claim to encompass whether his amputation was poorly performed. This is in direct contrast to other statements from Gable submitted to the VA concurrently where Gable plainly reflected his understanding that amending his administrative claim would require a clear statement of what the amendment contained. See, e.g., Rattray Decl. ¶ 8 and Exh. B (“Use this letter as a revision to my Tort Claim. I would like to revise my claim from $10,000,000 to $100,000,000.00.”). Because these list entries fail to identify any acts or omissions that allegedly contributed to Gable’s damages, they are not sufficient to place the VA on notice regarding any potential allegations that the amputation was not done properly or that post-amputation care was negligent or improper. See GAF Corp., 818 F.2d at 922 (claimants provided sufficient notice where they “identified the acts and omissions of the Government that in their view justifies contribution or indemnification for the liabilities they have incurred”); see also Smith, 157 F. Supp. 3d at 39 (finding court lacked subject matter jurisdiction to consider negligence claims because SF-95 and Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 11 of 24 11 the documents attached to it did not adequately apprise agency of facts such that agency could assess the claim for settlement). It is only in hindsight, with the benefit of having been involved with litigation related to Gable’s federal court complaint, that one can even argue that the above-noted comments related to Georgetown Hospital, Hospital Clinical Santa Maria, and Dr. Bueno might possibly relate to how the amputation was performed rather than to another injury he had already alleged. But, when viewed in context of the information Gable had provided to the VA at that time, there is nothing in Gable’s letter that would alert the VA that Gable’s treatment by the above-listed providers was related to a claim focused on how the amputation was performed rather than being focused on the adequacy of the other care he had received to his left leg prior to the amputation, i.e., two total knee replacement surgeries, several debridement procedures, and other medical treatments received between January 2006 and September 2006. Thus, based on Gable’s repeated statements and the documents he submitted, the VA was entirely justified in investigating, considering, and adjudicating Gable’s claims allegations as raising the following issues: (i) whether Gable had the capacity to and gave informed consent for his leg amputation procedure; (ii) whether the leg amputation was medically indicated and necessary for Gable; (iii) whether the VA provided Gable proper treatment, including proper hygiene, during his 10-month VA hospital stay associated with his leg amputation; (iv) whether there was any indication that Gable was treated improperly; (v) whether Gable’s own actions or omissions contributed to his claimed injuries; and (vi) whether VA health care providers deviated from the standard of care in their treatment of Gable and caused or contributed to any injury suffered by Gable. See Rattray Decl. ¶ 10. In summary, Gable has failed to exhaust administrative remedies -- and therefore cannot pursue a federal court claim -- related to his allegations that (a) the VA did not observe the proper Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 12 of 24 12 standard of care when performing the above-the-knee amputation to his left leg and (b) the VA did not provide proper post-operative care to the amputation surgery wound after performing the amputation. Because Gable’s administrative submissions set out facts and allegations that are limited to whether the VA properly performed Gable’s knee replacement operations, provided proper care to Gable with respect to bathing and administration of medication during his stay at the D.C. VA Medical Center, and obtained proper consent to perform a left leg above-the-knee amputation, the VA was not provided with legally-required notice for potential claims regarding whether the amputation was done properly or whether Gable’s post-operative amputation wound care was negligent. Accordingly, Gable failed to properly present and exhaust such claims, and they must be dismissed. II. Gable Failed to Comply with the FTCA’s Statute of Limitations; Thus, Each of His Claims is Time-Barred The FTCA requires that, prior to filing suit, a potential plaintiff file his administrative claim within time limitations periods articulated in the statute. The statute provides the following: 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. 28 U.S.C. § 2401(b) (emphasis added). “Statutes of limitations . . . represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.’ U.S. v. Kubrick, 444 U.S. 111, 117 (1979) (quoting Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349 (1944)). “Section 2401(b) . . . is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims.” Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 13 of 24 13 Kubrick, 444 U.S. at 117. Moreover, as § 2401(b) imposes a condition on the United States’ limited waiver of sovereign immunity, courts “should not take it upon [themselves] to extend the waiver beyond that which Congress intended.” Id. at 117-18; see also Sexton v. United States, 832 F.2d 629, 633 (D.C. Cir. 1987). A. An FTCA claim accrues when a plaintiff is aware or should have become aware of his injury and the cause. The seminal case regarding the accrual of the FTCA statute of limitations is United States v. Kubrick, 444 U.S. 111 (1979). In Kubrick, the plaintiff received treatment at the Veterans Administration hospital and, as a consequence of his medical care, the plaintiff suffered hearing loss in 1968. The plaintiff did not learn that his injury may have been caused by medical negligence until January 1969. Regardless, the Supreme Court held that the plaintiff’s claim accrued in 1968 because, as a matter of law, a claim accrues when a plaintiff: armed with the fact 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. Kubrick, 444 U.S. at 123. The linchpin of the Kubrick holding is that a claim accrues when a plaintiff is aware, or, in the exercise of reasonable diligence, should have become aware of his injury and its cause. Id. at 122; see also Rotella v. Wood, 528 U.S. 549, 555 (2000) (“[I]n applying a discovery accrual rule, [the Court] has[s] been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.”); Sexton, 832 F.2d at 633-34 (A medical malpractice claim accrues when the plaintiff possesses sufficient “historical facts associated with the injury” to permit him to “undertake a reasonably diligent investigation to determine whether a cause of action may lie.”); McIntyre v. United States, 367 F.3d 38, 53 (1st Cir. 2004) (An FTCA claim Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 14 of 24 14 accrues when a plaintiff possesses sufficient information with respect to his injury that, “[h]ad he sought out independent legal and [expert] advice at that point, he should have been able to determine in the two-year period whether to file an administrative claim.”); Landreth v. United States, 850 F.2d 532, 533 (9th Cir. 1988) (Under the FTCA, “a claim accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its cause.”). B. Courts apply an objective reasonable person standard to determine when a plaintiff knew or should have known of his injury and the cause. A plaintiff need not have legal proof of injury and cause, but must merely suspect the two exist in order for accrual to occur. The accrual of a claim is not a function of a plaintiff’s subjective beliefs, reactions, or even personal knowledge. Rather, courts apply an objective reasonable person standard to determine when a plaintiff knew or should have known of her injury and the cause. See Webb v. United States, 535 F. Supp. 2d 54, 58 (D.D.C. 2008) (“Courts measure discovery of the injury by when the claimant has discovered, or in the exercise of reasonable diligence should have discovered, the act constituting the alleged malpractice.”); McDonald v. United States, 843 F.2d 247, 248 (6th Cir. 1988) (once a plaintiff is cognizant of the injury and its cause, she is required to make a reasonable inquiry that may reveal the existence of a colorable claim of medical malpractice); Nemmers v. United States, 795 F.2d 628, 631-32 (7th Cir. 1986) (the plaintiff need not know the cause is certain or more likely than not the cause, but only that it is a potential cause of injury for the statute to begin running); Price v. United States, 775 F.2d 1491, 1493 (11th Cir. 1985) (plaintiff need not know the precise cause of the injury, only that it may be attributable to some act of the defendant); Coffie v. United States, 43 Fed. Appx. 808, 811 (6th Cir. 2002) (A claimant’s duty of diligent inquiry regarding a possible claim under the FTCA is measured by an Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 15 of 24 15 objective standard, i.e. - whether a reasonable person’s suspicions of an injury would include the individual to seek professional advice regarding legal recourse.). C. Most of Plaintiffs’ claims accrued prior to August 23, 2006. An objective, reasonable person in Gable’s circumstances would have been aware of the accrual of the majority of his claims no later than August 23, 2006; therefore, Gable’s failure to submit his administrative claim until September 16, 2008, bars his claims. Read liberally, Gable’s claims include allegations that (i) his two knee replacement operations were performed negligently, (ii) that negligent care and hospital conditions caused recurrent infections to his surgical wound, (iii) that he received negligent mental health treatment prior to and after the amputation, and (iv) that the hospital did not obtain informed consent prior to performing the amputation. Significantly, Gable does not allege in his administrative claim or his federal court complaint that he did not understand his medical conditions and was incapable of giving informed consent to any procedure other than his amputation. Consequently, based on Gable’s own representations in the informed consent forms he executed contemporaneously with each medical procedure, he was sufficiently aware of his medical circumstances--including the fact that his knee replacement surgeries failed, that he had recurrent infections, and that he did not receive what he believed to be adequate medication--all before he signed the consent authorization forms for, and received, the above-the-knee amputation surgery on August 23, 2006. A reasonable, objective person aware of these alleged injuries that occurred between January 2006 and August 22, 2006, would have suspected a link between the injuries and the hospital’s proffered care, which is all that is required for a claim to accrue. Consequently, Gable’s claim for each of his alleged injuries- except the amputation without informed consent and mental health treatment after the amputation- Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 16 of 24 16 occurred no later than August 22, 2006, and his failure to submit the administrative claims within the two-year statute of limitations bars his pursuit of those claims in this court. Any attempts by Gable to claim that the continuing-violations doctrine applies to rescue his claims should be unavailing. The continuing-violations, or continuing-tort, doctrine applies where “no single incident in a continuous chain of tortious activity can ‘fairly or realistically be identified as the cause of significant harm,’” and so it is “proper to regard the cumulative effect of the conduct as actionable.” Page v. United States, 729 F.2d 818, 821-22 (D.C. Cir. 1984) (quoting Fowkes v. Penn. R.R. Co., 264 F.2d 397, 399 (3d Cir. 1959)). The D.C. Circuit has recognized two types of continuing violations: (1) where defendants violated a statutorily imposed continuing obligation; or (2) where the “character [of the challenged conduct] as a violation did not become clear until it was repeated during the limitations period, typically because it is only its cumulative impact (as in the case of a hostile work environment) that reveals its illegality.” Earle v. District of Columbia, 707 F.3d 299, 306-07 (D.C. Cir. 2012). Neither type of continuing violation is implicated or applies in this case. Although Gable remained hospitalized post-amputation until October 18, 2006, and had minor procedures to treat a fall-induced injury to his stump and clean and remove damaged tissue from the wound area on September 5, 12, and 19, 2006, the allegedly wrongful acts occurred when the initial knee replacement operation was performed; when the knee became infected; when informed consent allegedly was not obtained; and when the amputation took place. There was no continuous tortious conduct beyond those discrete incidences.3 See, e.g., Hendel v. World Plan 3 Even to the extent Gable could be said to have a claim for improper mental health medication prior to and/or after the amputation, he was seen by a psychiatrist and his condition was corrected and stabilized by September 1, 2006. Dft’s Statement of Undisputed Material Facts ¶ 12. Furthermore, although Gable was denied wheelchair access for safety reasons for a short period after he fell, he was granted wheelchair access post-amputation on September 13, 2006, so any claim that he was denied such access also accrued prior to September 16, 2006. Id. ¶ 15. Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 17 of 24 17 Exec. Council, 705 A.2d 656, 667 (D.C. 1997) (“[O]nce the plaintiff has been placed on notice of an injury and the role of the defendants’ wrongful conduct in causing it, the policy disfavoring stale claims makes application of the ‘continuous tort’ doctrine inappropriate.”) (citations omitted). D. Gable presented his claim on September 16, 2008, but all of Gable’s claims accrued no later than September 5, 2006. Assuming, arguendo, that the Court interprets Gable’s allegations as asserting one claim that is continuous in nature from his first total knee replacement surgery in January 2006 up to and including the amputation procedure on August 23, 2006, Gable’s claim would still be time-barred and the United States would still be entitled to judgment in its favor because this claim would have accrued no later than September 5, 2006, and Gable failed to submit his administrative claim within two years of that date. Gable’s medical records show that although he experienced some confusion and disorientation in the days immediately after the amputation procedure, by September 1, 2006--i.e., approximately one week after the amputation surgery--he was alert and oriented, reported to the attending psychiatrist that he felt much better, and understood his circumstances. Dft’s Statement of Undisputed Material Facts ¶¶ 10-12. In addition, on September 5, 2006, Gable’s orthopedic surgeon “[d]iscussed the problems leading up to the amputation” with him, explained that Gable’s wound would not have healed on its own, and reported that Gable “appeared to have understood the decision to amputate.” Id. ¶ 13. Gable’s ability to engage in a discussion on September 5, 2006, regarding his amputation, the reasons for his amputation, and his other treatments is evidence that he was lucid and was in a position where an objective reasonable person would have known of the alleged injuries and their cause and could seek professional advice regarding legal recourse. Accordingly, the alleged continuous claim would have accrued no later than September 5, 2006, and Gable was required to submit his administrative claim no later than September 5, 2008. Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 18 of 24 18 Through his own lack of diligence, he failed to meet this deadline and, thus, his claim should be time-barred. The U.S. Court of Appeals for the District of Columbia Circuit has affirmed that, while § 2401(b)’s statute of limitations may put potential plaintiffs in an uncomfortable position, the timeliness requirements must still be imposed and enforced: Any statute of limitations that puts inquiry burdens on a plaintiff…entails a degree of ghoulish behavior. Patients or survivors, whose instinct may well be to shut off from their minds the grim experience through which they have passed, are required instead to follow up on their leads. For persons of any sensitivity this must be a difficult or even repugnant process. Yet to protect defendants from stale claims, legislatures put potential plaintiffs to the hard choice of proceeding with such inquiries or risk loss of possible claims. Sexton, 832 F.2d at 636. Here, Gable had ample time after learning of his alleged injuries to submit a claim to the VA notifying it of his alleged injuries and claims. His failure to do so, and to file his administrative claim within the required time, bars him from bringing any claim that accrued prior to September 16, 2006, against the United States. E. The Court should not apply equitable tolling to the Statute of Limitations in this case. Although the FTCA’s time bars are subject to equitable tolling, see United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1633, 1638 (2015), the Court should not apply equitable tolling in this case because Gable failed to exercise due diligence to investigate and/or pursue his claims. With respect to determining whether equitable tolling should be applied, the Supreme Court has explained: We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving . . . where the claimant failed to exercise due diligence in preserving his legal rights . . . [Moreover,] the Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 19 of 24 19 principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990) (emphasis added). Thus, a court may pause the running of the statute of limitations when a party “has pursued his rights diligently but some extraordinary circumstance” prevents him from meeting a deadline. Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1231-32 (2014); see also Chung v. United States Dep’t of Justice, 333 F.3d 273, 278 (D.C. Cir. 2003) (equitable tolling “applies most commonly when the plaintiff ‘despite all due diligence . . . is unable to obtain vital information bearing on the existence of his claim’”) (quoting Currier v. Radio Free Europe, 159 F.3d 1363, 1367 (D.C. Cir. 1998). In contrast, equitable tolling is not appropriate in this case because Gable failed to “act with reasonable diligence” to file a timely claim. See Norman v. U.S., 377 F. Supp. 2d 96, 101 (D.D.C. 2005). By early September, and no later than September 5, 2006, Gable was fully aware that his knee replacement operations had been unsuccessful and that his left leg had been amputated above the knee, as well as all the facts and circumstances related to his care and treatment while at the VA Medical Center prior to the amputation and the informed consent, or lack thereof, that was obtained prior to surgery. Furthermore, documents show that the VA provided Gable with forms and instructions for filing an FTCA claim in February 2008, but that Gable waited nearly seven full months--until September 16, 2008--to actually file a claim with the VA. See Dft’s Statement of Undisputed Material Facts ¶ 20. Accordingly, the Court should not equitably toll the FTCA’s statute of limitations and should find that Plaintiff’s claims are time barred. Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 20 of 24 20 III. Gable’s Claims Are Partially Barred by the Veterans Judicial Review Act The Veterans Judicial Review Act (“VJRA”), 38 U.S.C. § 511(a), deprives the federal district courts of subject matter jurisdiction over claims regarding benefits to veterans by the Department of Veran Affairs (“VA”). Section 511 provides: The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. . . . [T]he decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise. 38 U.S.C. § 511. Other provisions of the Act specify that, where a claimant seeks to challenge the denial of benefits to which he believes he is entitled, the claimant must first appeal a benefits decision to the Board of Veterans Appeals, then to the Court of Appeals for Veterans’ Claims, then to the Federal Circuit, and ultimately to the Supreme Court. 38 U.S.C. §§ 7104(a), 7252(a), and 7292(c). In analyzing whether Gable has presented claims for veteran’s benefits that fall within those claims litigated under the VJRA, the Court must determine whether the claim requires it to “‘determine first’ whether [Gable] was entitled to a certain level of benefits.” Thomas v. Principi, 394 F.3d 970, 974 (D.C. Cir. 2005). In Thomas, a veteran filed suit in district court and alleged the VA had committed medical malpractice under the FTCA. The D.C. Circuit held that the VJRA barred the plaintiff’s claims that the VA had failed to render appropriate medical services, and the VA’s persistent denial of necessary medical treatment caused him severe emotional distress, because adjudication of those claims would have required “the district court to determine first whether the VA acted properly in handling Thomas’s benefits request.” Id. at 974. In this case, the VJRA bars this Court’s review of Gable’s claims that he was entitled to showers while hospitalized (rather than the sponge baths to which he was provided) and that he Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 21 of 24 21 should have been provided certain mental health treatments or medications (such as bi-weekly mental health examinations), because resolution of those claims would require the Court to first determine whether Gable was entitled to a certain level of benefits and treatment. Additionally, Gable’s FTCA claim, and his statements to the Court, appear to allege that rather than performing an above-the-knee amputation at the VA Medical Center, the VA should have provided him with an alternative treatment (such as an antibiotic sleeve) and/or permitted him to receive care or surgery at a different hospital (e.g., Georgetown Hospital). These alternative treatment and care claims are also barred by the VJRA because determining whether the VA should have transferred Gable to a different facility (which would require determining whether his VA benefits did, or should have, permitted treatment at a non-VA facility) and determining whether Gable should have been offered alternative treatments (which would require determining whether his VA benefits permitted such alternatives) falls squarely within the type of inquiry that the VJRA prohibits this Court from making. As a result, these claims should be dismissed because this Court lacks jurisdiction to adjudicate them. CONCLUSION WHEREFORE, for the reasons set forth above, Defendant United States of America respectfully requests that this Court grant summary judgment in Defendant’s favor on all remaining tort claims. Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar #415793 United States Attorney DANIEL VAN HORN, D.C. Bar #924092 Chief, Civil Division By: /s/ Jason T. Cohen JASON T. COHEN, ME Bar #004465 Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 22 of 24 22 Assistant United States Attorney Civil Division 555 Fourth St., N.W. Washington, D.C. 20530 Phone: (202) 252-2523 Fax: (202) 252-2599 Email: jason.cohen@usdoj.gov Counsel for Defendant Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 23 of 24 23 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 3rd day of March, 2017, a true and correct copy of the foregoing Motion for Summary Judgment and Memorandum in Support was served upon Plaintiff by first class United States mail, marked for delivery to: Richard M. Gable 29812 Cheryl Court Mechanicsville, MD 20659 (240) 300-2787 /s/ JASON T. COHEN Assistant United States Attorney Case 1:12-cv-01634-RMC-GMH Document 89 Filed 03/03/17 Page 24 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RICHARD MAURICE GABLE, ) ) Plaintiff, ) ) vs. ) C.A. No. 1:12-cv-01634-RMC-GMH ) UNITED STATES OF AMERICA, ) ) Defendant. ) ___________________________________ ) ORDER Based upon consideration of Defendant’s Motion for Summary Judgment and the entire record of this case, and for good cause shown, it is hereby ORDERED that: 1. Defendant’s Motion for Summary Judgment is GRANTED; 2. The Clerk of Court shall close this case SO ORDERED this _____ day of _______________________________, 2017. _______________________________ JUDGE ROSEMARY M. COLLYER Copy to be mailed to: Richard M. Gable 29812 Cheryl Court Mechanicsville, MD 20659 Case 1:12-cv-01634-RMC-GMH Document 89-1 Filed 03/03/17 Page 1 of 1