Gonzalez v. United States of America et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.October 7, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MIGUEL GONZALEZ. Plaintiff, UNITED STATES OF AMERICA, et al., Defendants. AND NOW. this Civil No. l6-cv-3 65 7 (LDD) ORDER day of 2016, upon consideration of the motion by defendant the United States olAmerica to dismiss the Amended Complaint, and any response thereto, it is hereby ORDERED that the motion is GRANTED. It is FURTHER ORDERED that all claims against the United States and named defendant Shubhra Shetty are DISMISSED, with prejudice. BY THE COURT: LEGROME D. DAVIS United States District Judge Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MIGUEL GONZALEZ, Plaintill. Civil No. l6-cv-3657 (LDD) LINITED STATES OF AMERICA, et al., Defendants. ORDER AND NOW, thiS day of .2016, upon consideration of the motion by defendant the United States of America to dismiss the Amended Complaint, and any response thereto, it is hereby ORDERED that the motion is GRANTED. It is FURTHER ORDERED thar the deadline for defendant Shubhra Shetty to answer or otherwise plead in response to the instant complaint shall be extended to and including BY THE COURT: LEGROME D. DAVIS United States District Judge Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 2 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MIGUEL GONZALEZ, Plaintiff, Civil No. l6-cv-3657 (LDD) UNITED STATES OF AMERICA, et al., Defendants. MOTION TO DISMISS Pursuant to Federal Rule of Civil Procedure 12, defendant the United States of America moves to dismiss this action for failure to state a claim. Pennsylvania's statute ofrepose for professional liability claims - 40 Pa. Stat. $ 1303.513(a) - bars plaintifls claims entirely. In support of this motion, the United States incorporates by reference the memorandum oflaw filed concurrently herewith. Respectfully submitted, ZANE DAVID MEMEGER United States Attomey ARET L. HUT SON Assistant United Sta Attomev Chiel Civil Division PA Assistant U States Attorney Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 3 of 17 IN THE UNITED STATES DISTRJCT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MIGUEL GONZALEZ, Ptaintiff. Civil No. l6-cv-3 65 7 (LDD) UNITED STATES OF AMERICA, et at., Delendants. MEMORANDUM OF LAW IN SUPPORT OF THE UNITED STATES'MOTION TO DISMISS Plaintiff brings this medical malpractice action more than seventeen years after the alleged negligence occurred. Atthough plaintiff alleges that he first discovered the negligence in 20i4, Pennsylvania has a statute ofrepose for medical professional negligence - 40 Pa. Stat. $ 1303.513(a) - that extinguishes any such cause ofaction at a point seven years after the alleged negligence occurred. That statutory deadline represents a balancing by the Pennsylvania Legislature ofthe interests ofpotential plaintiffs and potential defendants, and unlike the two- year statute of limitations for common law torts, it is not subject to tolling under the "discovery rule" or other equitable doctrines. Because plaintiff did not file within seven years ofthe negligent act he alleges, his cause ofaction is extinguished by the statute ofrepose, and his case must be dismissed for failure to state a claim upon which reliefcan be granted.l I As the Court is aware, the United States has been attempting to determine the employment status of named defendant Shubhra Shetty, M.D. since the case was initialty filed. See United States Unopposed Motion lor Extension of Time dated September 7, 2016 (docket no. 3). Unfortunately, Dr. Shetty's employment status has proved to be a challenge to pin down. It is clear that Dr. Shetty was appointed as an Instructor in Medicine at the University of Pennsylvania Health System ("Penn") effective July I , I 998. See Letter from Peter Traber, M.D. to Shubhra Shetty, M.D. dated June 1, 1998, a redacted copy of which is attached hereto as Exhibit 1. It is equally clear from that letter that Dr. Shetty's salary was paid by the United Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 4 of 17 States Department of Veterans Affairs ("VA"). Id. Penn and the VA have a longstanding relationship under which many medical professionals have had appointments of this kind. However, over time and from position to position, the nature and terms of this agreement have varied. And, in large part because eighteen years have passed, it has proved difficult for both the VA and Penn, which undersigned counsel contacted as part of this effort, to locate the particular contract or memorandum that govemed Dr. Shetty's position. Accordingly, it is not possible to determine yet whether Dr. Shetty was a federal employee for purposes of the Federal Tort Claims Act. If Dr. Shetty was a federal employee within the scope of her employment, the United States would be substituted for her pursuant to the Westfall Act, 28 U.S.C. $ 2679. The United States therefore moves to dismiss solely on its own behalf, although the arguments made here apply equally to Dr. Shetty, as the Pennsylvania statute ofrepose for medical negligence does not distinguish between individual and institutional providers. In the interest ofjudicial economy, the United States respectfully requests that the Court address the statute ofrepose issue as briefed herein, even though Dr. Shetty cannot yetjoin this briefor file one on her own behalf. As soon as the United States can determine whether the Westfall Act applies to Dr. Shetty, it will so advise the Court. As the foregoing suggests, the United States believes that the Court can and should dismiss the case in its entirety on this briefing, notwithstanding the open question regarding the application of the Westfall Act. However, in case the Court sees this matter differently, the United States has submitted a second form oforder providing for an extension of time for Dr. Shetty to answer or move to dismiss. To the extent that the Court requires a motion from Dr. Shetty requesting that particular relief, undersigned counsel hereby make that motion on Dr. Shetty's behalf, without entering their appearance for her in any other respect. By making this motion for extension in the altemative, Dr. Shetty neither waives any defenses available to her nor waives her right file a separate motion pursuant to Fed. R. Civ. P. l2 on the grounds asserted here or others should she or her counsel determine that to be in her interest. 2 Information about HIV and AIDS is widely available, including at the website of the Centers for Disease Control. See http://r.rrrr.r'.cdc.gov/hiv/default.htm l/. I. BACKGROUND Plaintiff Miguel Gonzalez brings the instant action alleging professional negligence. He avers that in November 1998, Dr. Shubhra Shetty (a physician working at the Department of Veterans Affairs ("VA") hospital in Philadelphia) informed him that he was infected with the Human Immunodeficiency Virus ("HIV"). Complaint'lf 19-20. HIV causes Acquired Immune Deficiency Syndrome C'AIDS"), a disease that destroys its victim's immune system. It is uniformly fatal if untreated, but modem medical treatment can prolong life to the point where it can be a chronic disease for many individuals.2 Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 5 of 17 Plaintiff alleges that the HIV positive status is noted in his medical records for visits between 1998 and 2014, and he avers that this status was "reaffirmed" by VA employees during what he terms "several" visits between 1998 and 2014.3 Complaifinn2l-22. Plaintiff claims that he chose to abandon his family when told he had HIV in 1998 and began suffering mental health issues at that time. Complaint !J!f 25-26. In November 2014, the plaintiff was informed by VA personnel that he was not HIV positive. Complaint fl 23. I Legal Standard A. The Interaction ofthe Federal Tort Claims Act and Pennsylvania Law It is well-settled that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms olits consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood,3l2 U.S. 584,586 (1941). This immunity is waived only to the extent Congress, by statute, consents to that waiver. See United States v. Mitchell, 445 U.S. 535, 538 (1980). Congress has consented to such a waiver for tort claims against the United States and its agencies with the Federal Tort Claims Act ("FTCA"). Indeed, the FTCA "is the exclusive waiver ofsovereign immunity for actions sounding in tort against the United States, its agencies and,/or officers acting in their official capacity " J.D. Pflaumer v. United States Deoartment of Justice. 450 F. Supp. 1125,1132 n.l1 (E.D. Pa. 1978). 3 For purposes of a motion to dismiss pursuant to Rule of Civil Procedure l2(b)(6), the Court is required to take plaintiff s allegations as true. See infra. Although the United States believes the use ofthe term "several" suggests more frequent treatment at the VA than plaintiff actually sought or received during this period, the distinction is not material to his claims. Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 6 of 17 Pursuant to the FTCA, the United State may be sued in tort "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. $ 2674. The manner and extent to which a private individual could be sued is determined by reference to the relevant state substantive law. See 28 U.S.C. $ 1346(b) (establishing that the FTCA looks to whether "the United States, ifa private person, would be liable to the claimant in accordance with the law of the place where the dct or omission occuted') (emphasis added). It is undisputed that the alleged tort occurred in Pennsylvania, which therefore supplies the substantive tort law of decision. Accordingly, if Pennsylvania law provides a cause of action for the allegations the plaintiffis making against private individuals similarly situated, then the plaintiff may sue the United States. Conversely, if Pennsylvania law does not provide plaintiff with a cause ofaction or affirmatively extinguishes that cause ofaction after a certain period of time as against a private person in like circumstances, plaintiff cannot sue the United States. B. Pennsylvania'sProfessionalLiability Statute of Repose Pennsylvania has a default statute of limitations of two years for tort cases, which is a procedural rule that is echoed in 28 U.S.C. $ 2401(b). That ordinary statute of limitations may be equitably tolled, including by the "discovery ruIe." See senerally Huehes v. United States, 263 F.3d272,275 (3d Cir. 2001) (quoting Banen v. United States, 839 F.2d 987, 991 (3d Cir.l988)). Pennsylvania also has a second statute relating to limitations that is specific to medical malpractice matters, as distinguished from tort matters more generally. That statute, passed as part of Pennsylvania's comprehensive MCARE legislation, is 40 P.S. S 1303.513 ("Section 1303.513" or "$ 1303.513"). Section 1303.513 provides in relevant part that "[N]o cause of Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 7 of 17 action asserting a medical professional liability claim may be commenced after seven years from the date ofthe alleged tort or breach ofcontract." 40P.S. $ 1303.5I3(a).a Section 13 03.513 is titled "Statute of Repose," expressly placing it within the larger category of statutes ofthat kind.s Speaking generally, statutes olrepose "bar[] a suit brought a fixed number ofyears after the defendant acts in some way. .. even if this period ends before the plaintiffhas suffered any injury." Black's Law Dictionary, 1Oth Ed. (2014). In defining the contours ofthese rules, Black's refers to 54 C.J.S. Limitations of Actions $ 4, aI20-21 (1987), which explains that "A statute of repose ... limits the time within which an action may be brought and is not related to the accrual ofany cause ofaction; the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual ofthe claim, the period contained in a statute ofrepose begins when a specific event occws, regardless ofwhether a cause of aclion has accrued or whether any injury has resulted;' (Emphasis added.) Pennsylvania's statutes ofrepose (including $ 1303.513) are no different. Pennsylvania's Commonwealth Court explains the distinction thusly: The difference between statutes of repose and statutes of limitations is that statutes of limitation[s] are procedural-devices which bar recovery on a viable cause ofaction, where statutes ofrepose are substantive in nature because they extinguish a cause ofaction and preclude its revival. In addition, statutes of limitation[s] begin to run from the time of an injurious occurrence or discovery of the same, whereas statutes ofrepose run for a statutorily determined period of time after a definitely established event independent ofan injurious occurence or discovery ofthe same. a There are two exceptions to this rule, one pertaining to foreign objects and the other to injuries to minors. See 40 P.S. $ 1303.513(b)-(c). Neither is applicable here. 5 Like many states, Pennsylvania has statutes ofrepose for a variety ofcontexts. The most commonly litigate in Pennsylvania jurisprudence are g 1303.513 and 42Pa. C.S. $ 5536 (establishing a statute ofrepose of twelve years for certain construction actions). Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 8 of 17 DaimlerChrysler Corp. v. Com.. 885 A.2d 117, 120*21 (Pa. Commw. Ct. 2005), affd, 592 Pa. 612, 927 A.2d, 201 (2007), quoting Mille Stroud Townshio and Stroudr Townshio Sewer Authority, 804 A.2d 749,752 (Pa. Cmwlth. Ct.2002), Thus, although Pennsylvania's statutes ofrepose resemble its statutes of limitations, the "discovery rule" does not exist for statutes ofrepose, which "run for a statutorily determined period of time after a definitely established event independent of... discovery ofthe same." Pennsylvania's statute ofrepose for medical negligence, $ 1303.513, both fits this category and functions this way. The leading federal case regarding $ 1303.5 13 is Natale v. United States, No. 13-cv-2339,2104WL 1281224 (E.D. Pa. March 28, 2014). There, Judge Mclaughlin defined statutes of repose in nearly identical terms to Black's and cited the Third Circuit cases establishing that "the discovery rule and other equitable tolling doctrines do not apply to statutes ofrepose unless they are expressly incorporated into the statute." Id. at *7, citine Lieberman v. Cambridse Partners. LLC,432F.3d 482,490 (3d Cir. 2005); Williams v. Well Fargo Home Mort Inc. 410 Fed. App'x 495,499 (3d Cir. 2011). Section 1303.513 doesS s.- not incorporate any equitable doctrines.6 Natale also expressly demonstrates the distinction between statutes of limitations and statutes of repose. while the court held that that it was impossible to tell from the pleading whether the claim was brought untimely for limitations purposes, it went on to dismiss anyway, 6 Natale also agrees with a wealth ofprior precedent that statutes ofrepose are part ofthe substantive law of Pennsylvania, and thus that they are applicable to claims against the United States. Id. at *7, citine Ka lan v. Shure Bros Inc. 153 F.3d 413, 422 (7th Cir.l998); Star v Rosenthal, 884 F. Supp. 2d,319,325 (E.D. Pa.2012); InreCmtv. Bank of N . Vireinia. 467 F.Supp.2d 466, 480-81 (W.D. Pa. 2006); Altoona Area Sch. Dist. v. Campbell ,618 A.2d, ll2g, 1992); see also DaimlerChrvsler Corp. v. Com., 885 A.2d at 120-21;1134 (Pa. Commw. Ct. Muhammed v. United States No. l3-cv-2127,2016 WL 1626620 (M.D. pa. Aprit22,2016) (citing Natale and enteringjudgment against plaintiffon statute ofrepose and other grounds). Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 9 of 17 because Pennsylvania's statute ofrepose baned the claim even if the statute ollimitations did not. Id. at *7. C. Leeal Standard for Motions to Dismiss Pursuant to Fed . R. Civ. P. 12(b)(6) Federal Rule of Civil Procedure l2(b)(6) permits a defendant to move to dismiss a complaint that is insufficient on its face and as a matter of law. In evaluating a I 2(b)(6) motion, the Court must differentiate between those allegations that are well pleaded and those that merely assert "a formulaic recitation ofthe elements ofa cause ofaction" or "naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 129 S. Ct. 1937 , 1949 (2009). In order to survive such a motion, the complaint must "state a claim to reliefthat is plausible on its face." Bell Atlantic Corp. v. Twomblv, 550 U.S. 544,570 (2007). Plaintifls allegations "must be enough to raise a right to reliefabove the speculative level," and must contain "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [a valid claim]." Id., at 555- 56. Once all conclusory or hollow allegations are discarded, the court must determine whether the alleged facts that remain are sufficient to show that the plaintiffhas a "plausibte claim for relief." Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). If the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, then the complaint has not shown that the pleader is entitled to relief. Iqbat, 129 S. Ct. at 1949. In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept all well-pleaded facts as true. See Citv ol Philadel phia v. Lead Industrics Ass'n., Inc ,994 F.2d, 112 (3d Cir. 1 993); Schrob v. Catterson, 9 48 F.2d | 402 (3 d Cir. I 99 1 ).7 7 There is an analytical question regarding whether this motion should be founded in Rule 12(b)(6) or whether it should be based on Rule l2(b)(l). The latter interpretarion has greater inluitive force, because Congress only waived its sovereign immunity foi those tort cla"ims for which Pennsylvania provided a right ofaction and, thus, ifpennsylvania law does not provide a right of action, sovereign immunity remains intact. For purposes of this motion, which is based Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 10 of 17 III. ANALYSIS The Pennsylvania Legislature established the statute ofrepose for medical negligence claims after carefully balancing the interests ofprospective plaintiffs and potential defendants, and it set an absolute limit that does not incorporate any equitable totling. Plaintiff alleges that he was misdiagnosed with HIV more than seventeen years before his complaint was filed. But Pennsylvania's statute ofrepose extinguished his claim when he did not file his action in 2005, at time when memories were fresh, witnesses were available, and the events of the time could be reconstructed clearly. Nearly eighteen years later, none ofthat is possible. Plaintiffs cause of action has been extinguished, and his case must be dismissed. A. Pennsvlvania' s Statute of Repo se Bars Plaintiff s Claim Plaintiff is far beyond the period of repose. His complaint is that a misdiagnosis occurred in 1998, nearly eighteen years ago. As described in detail in Section II.B, supra, the statute of repose is subject neither to a "discovery rule" nor to other equitable tolling doctrines. Indeed, it is that very fact which distinguishes it from the (far shorter) statute of limitations. As the Fourth Circuit explains, "Statutes ofrepose are motivated by considerations ofthe economic best interest of the public as a whole and are ... based on a tegislative balance ofthe respective rights ofpotential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists." Jones v. Saxon Morts.. Inc., 537 F.3d 320,327 (4th Cir. l99g) (intemal quotations omitted). Statutes of repose, in other words, stem from and codify the common sense proposition that "There comes a time when a defendant ought to be secure in his on the law and the facts asserted by plaintiff, the distinction does not appear to the United States to be material. However, ifthe court concludes that needs facts outside the complaint to determine the motion, the united states respectfully submits that Rule 12(b)(1) permits it to consider them. Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 11 of 17 reasonable expectation that the slate has been wiped clean ofancient obligations, and he ought not to be called on to resist a claim when evidence has been lost, memories have faded, and witnesses have disappeared." Klein v. Catalano, 386 Mass. 701,709,437 N.E.2d 514,520 (1982), quotine Rosenberq v. No(h Bereen, 61 N.J. 190,201,293 A.2d,662 (1972) (intemal quotations omitted). In extinguishing claims that would otherwise be actionable, statutes ofrepose do harm even an otherwise-blameless plaintiff. As the Third Circuit recognized in the context of Pennsylvania's statute ofrepose for real estate claims, "[s]tatutes ofrepose by their nature [] impose on some plaintiffs the hardship ofhaving a claim extinguished before it is discovered, or perhaps before it even exists...." Luzadder v. Despatch Oven Co., 834 F.2d 355, 358 (3d Cir. 1987) (holding that this "is the function" ofstatutes ofrepose, citing W. Keeton, Prosser and Keeton on lorls $ 30, p. 168 (5th Edition 1984)). Because these statutes represent a legislative balancing ofthe interests ofpatients who might be harmed by medical negligence against the interests ofthe providers in being able to insure and defend against such claims, one or the other will be disadvantaged however this balance is struck: either an actionable claim may be extinguished because it is not discovered in time, or a provider may be forced to defend against a claim based on actions decades earlier that cannot accurately be reconstructed. Yet the necessity of this kind of balancing is amply demonstrated by the present case. If plaintifls claim were permitted to proceed, and if the statute of limitations could be tolled for the entirety ofthe period between 1998 and 2014, the parties would have to reconstruct the activities eighteen years ago of a walk-in clinic that no longer exists in order to determine whether the standard of professional care was met. Likewise, the parties would have to reconstruct exactly what plaintiff was told about his diagnosis and prognosis, by whom, and when. yet these tasks Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 12 of 17 are nearly impossible, today. Memories have long since faded beyond the point where the parties could recall precisely what tests were done or by whom nearly two decades ago, much less who said exactly what to whom and with what caveats. As the Massachusetts Supreme Court a(iculated in Klein, that is precisely why legislatures set a time at which these suits can no longer be brought.8 Indeed, as noted in footnote l, supra, it is difficult nearly two decades later to reconstruct even the terms of an employment contract, much less these details of a particular, otherwise utterly typical day in the life ofthe clinic's practitioners. That plaintiffs claim has been extinguished is, as the Third Circuit has recognized, a "hardship" for him. But, as the Third Circuit has also recognized, that hardship is a determination made by the Perursylvania Legislature in balancing the respective interests of claimants and medical care providers. Statutes of repose differ from statutes of limitation precisely because they do not permit any equitable defenses and do not have a discovery rule. The Court must therefore dismiss this action.e 8 Absent a statute ofrepose, eighteen years would not even be the longest case that could be litigated. In theory, the statute of limitations could be tolled by the discovery rule for several decades. It is unsurprising, then, that so many state legislatures have found a need to set a true culofffor tort claims that places a fixed end date at which the discovery rule no longer obtains. Even if the discovery rule were available to plaintiff- which it is not, see Leiberman and Williams, supra -plaintiff would only be entitled to toll the statute of limitations .,where [he] neither knows nor reasonably should have known of his injury." Fine v. Checcio 582 Pa.253, 9 267,870 A.2d 850,859 (Pa.2005). The court must accept as true for purposes olthis motion that plaintiff first became aware that he was not HIV positive in Novemb er 2014. However, the United States respectfully contends that he should have klown that much earlier. Plaintiff alleges that he was diagnosed with a contagious, lethal virus in 199g, one that if left untreated ravages the immune system. plaintiff does not, however, allege that he ever received treatment - from the VA or elsewhere - for the HIV he alleges thaihe believed himsetf to have. whether a patient's HIV infection has progressed into AIDS is determined by a blood cell count ofless than 200 cD4 cells/mm3 or by the onset ofopportunistic infections. See gelerally htlps://aiclsinlb.nih.gov/education-nraterials/lirct-sheeis/ I c) r.+6rthe-slales_tr l:hirf inl'ection. Thus plaintiffs diagnosis would depend on this testing being done p"eriodically. But this testing would have reveared that plaintifri cD4 count was normal, and stable, bringing into Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 13 of 17 B. Plaintiff s Claim Cannot Be Saved bv Characterizin s It as General Neslisence Likely in an attempt to plead around the statute ofrepose, plaintiffalso includes a count in his complaint - Counl I - for what he characterizes as negligent infliction of emotional distress. The substance ofthat claim, however, is identical: that "Plaintiff was misdiagnosed with HIV by Defendants, and this diagnosis was reaffirmed in records and in person by Defendants at several appointments over several years." Complaint at fl 28. Artful pleading does not save plaintiffs claims, because courts look to the substance of claims, not their form. Thus, "ln considering whether an act complained of is one of ordinary negligence and not medical malpractice, a court must consider'(1) whether the claim pertains to an action that occurred within the course ofa professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience."' Natale,20l4 WL 1281224 at *5, quotins Grundowski v. United States,2012 WL 1721781, at*6 (M.D. Pa. May 16, 2012) (in tum quoting Davis v. United States, 2009 WL 890938, at *5 (M.D. Pa. Mar.31,2009)). question the alleged HIV diagnosis in the early 2000s at the latest. If plaintiff had sued at that point, the memory and record issues that we face today * and which the Pennsylvania Legislature passed the statute ofrepose to protect against - would not be nearly so acute, and the United States would be able to defend more readily against plaintifls claims. Moreover, if the plaintiff went sixteen years without being monitored for HIV,s progress or treated for HIV, as his complaint suggests, he should have known earlier that there was something amiss with the alleged diagnosis. In the decade and a half plaintiff avers that he believed himself to be suffering from a terrible disease that - if left untreated - would destroy his body's ability to fight infection and, within a matter of years, kill him. yet plaintiff does not allege that he experienced any of its telltale signs. Nor could he, since he wis not in fact HIV positive. But if plaintiff was neither receiving treatment for HIV nor experiencing the symptoms of the disease for over a decade, that should have led him to question thi diagnosl. He should have_ known that something was amiss, and he should have investigated. Had he done so, he would have discovered the alleged error at a time when his claim could be litigated fairly, not nearly two decades after the alleged malpractice. Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 14 of 17 Put another way, a claim "'sounds in malpractice' where 'the conduct at issue constituted an integral part ofthe process of rendering medical treatment,"'and when "evidence is predicated'upon lacts constituting medical treatment... involv[ing] diagnosis, care, and treatment by licensed professionals,' the evidence 'must be characterized as [evidence of] professional negligence." Natale, 2014 WL 1281224 at *5-6 (quoting Iya1reika v. Cohen & Qrissby. P.C. , 249 F ed, App'x 938, 944 (3d, Cir. 2007); Ditch v. Wavnesboro Hosp., 917 A.2d 3 17, 322-23 (Pa. Super. Ct. 2007 ) ; and Grundowski, 201 2 W L I 7 21 7 81, at * 6). There is no question that plaintiff s claim sounds in medical malpractice; his claim accrued entirely within the course ofa professional relationship, and it raises questions of medical judgment beyond that of common experience. Indeed, the basis of his complaint is quite literally "medical treatment... involving diagnosis... by licensed professionals." Moreover, he brings an express malpractice claim in Count II against the same exact defendants on precisely the same factual predicate, and he has filed a Certificate of Merit to satisfu Pennsylvania law. See Docket no. 5. Plaintifls complaint must be read in substance, not in form, and it pleads a claim for "medical professional liability," not general negligence. Regardless of counsel's artful pleading, plaintiff s complaint is subject in its entirety to 40 P.S. g 1303.5 13. IV. CONCLUSION Like many of its counterparts around the country, the pennsylvania Legislature has a struck a difficult balance between the respective rights ofpotential plaintiffs and potential defendants by establishing a "time limit beyond which liability no longer exists.,, Jones, 537 F .3d' at 327 . That time limit is seven years, and it admits no equitable exception. yet it has been fifteen years since plaintiff was allegedty misdiagnosed with HIV. Accordingly, plaintifls right Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 15 of 17 ofaction has long since been extinguished, and despite the hardship it causes plaintiffto have had his claim obviated before he allegedly was aware of it, that is the intended, explicit function ofthe statute ofrepose. In passing $ 1303.513, Pennsylvania's legislature struck a balance of interests which this Court is not free to disturb. Plaintifls cause of action was extinguished years before his complaint was filed, and the complaint must therefore be dismissed. Respectfully submitted, ZANE DAVID MEMEGER United States Attomey T L. HUT SON Assistant United States Attomey Chief, Civil Division PA LW.KA Assistant U States Attomey Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 16 of 17 CERTIFI OF SERVICE I hereby certify that on this date I caused a true and correct copy ofthe foregoing Motion to Dismiss, which was electronically filed through the Clerk of the Court's ECF filing system, to be served by first class mail, postage prepaid, upon counsel ofrecord: PAUL W. Assistant ted States Attomev Dated: October 7. 201 6 Case 2:16-cv-03657-LDD Document 9 Filed 10/07/16 Page 17 of 17 Exhibit 1 Case 2:16-cv-03657-LDD Document 9-1 Filed 10/07/16 Page 1 of 2 !! !.\.!1 UNIVERSITY OF PENNSYLVANIA HEAUIH SYSTEM Peter G. Traber, M.D. Frank Wister Thomas Professor of Medicine Chair, Depanment of Medicine University of Pennsylvania School of Medicine Hospital of the University of Pennsylvania June l, [ 998 Shubhra Shett , M.D. I'clcr G. Traber, M.D. Hlrvcy Friedman, M.D. Chicl'. Infectious Diseases Division I lccept your offer as outlined above. Shubhra She , M.D. Dear Dr. Shetty: I arn pleased !9 gffer you an appointment as Instructor in Medicine at the University of Pennsylvania effective July 1, 1998. Instructor appointments require reappointment every year tnd.are renewable -for up,to th,ree years. Please note that your appointment-cannot be conipleted tuntil requirements for medical licensure, DEA, and hospital credentials are fulfilled. You will be a member of the Infectious Diseases Division under the direction of Dr. Harvey Friedtnan. Office space and secretarial sr:pport will be provided from resources assigned to thC Division at the Veterans Affairs Medical Center. YoLrr clinical duties will be carried out at the Philadelphia Veterans Affairs Medical Center where you rvill participate in the HIV clinic four half days a week, and serve as Infectious Disease consultirnt four-five months of the year.. Your salrry for 1998-1999 will be fand will be derived entirely from rhe VAMC. Il'yotr .accept th_is appointment, please sign at the space indicated below and return the signed offer lo nlc l)y June 10, 1998. Please respond promptly for information or documentation; fallure to do so rvill rcsult in delay of your appointment. With l)cs( rcgards. S i ncere ly, oo/66q v Date 100 Centrcx . 1400 Spruce Strcct . Philadelphia, PA 19104-4283 . Zt 5-662-2402 . FAXi Zli -349_5.134 4Z Case 2:16-cv-03657-LDD Document 9-1 Filed 10/07/16 Page 2 of 2