United States District Court, D. Massachusetts
OSSEPHA SAINT CYR DESIR and JEAN DESIR, Each Individually and on Behalf of the Estate of G.D., Plaintiffs,
STEWARD HEALTH CARE SYSTEMS, LLC, STEVEN OH, M.D., JACQUELINE GALLAGHER, P.A., and UNITED STATES, Defendants.
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, District Judge.
On June 11, 2014, the plaintiffs, Ossepha Saint Cyr Desir ("Ms. Desir") and Jean Desir (together, the "Desirs"), filed this personal injury and wrongful death action in state court against Steward Health Care Systems, LLC ("Steward Health Care"), Steven Oh, M.D. ("Dr. Oh"), Soheil A. Hanjani, M.D. ("Dr. Hanjani"), Vida Mia Ruiz, C.N.M. ("Ms. Ruiz, " a certified nurse midwife), and Jacqueline Gallagher, P.A. ("Ms. Gallagher, " a physician assistant).The Desirs allege that these defendants' negligent medical care resulted in the premature birth and then death of their infant son, G.D., on October 22, 2011, when Ms. Desir was 19 weeks pregnant.
Dr. Hanjani and Ms. Ruiz removed the case to this Court on the basis that they are covered under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) & 2671, et seq., by virtue of their employment by Brockton Neighborhood Health Center ("BNHC"), a federally supported health care center subject to the Federally Supported Health Centers Assistance Act of 1992 (the "Health Centers Act"), 42 U.S.C. § 233. Thereafter, this Court granted Dr. Hanjani and Ms. Ruiz's Motion to Substitute the United States as Proper Party Defendant [Dkt. 4, granted at Dkt. 22] and dismissed Dr. Hanjani and Ms. Ruiz from the action pursuant to 28 U.S.C. § 2679(b)(1), which provides that the exclusive remedy for claims arising from the negligent or wrongful conduct of federal employees acting within the scope of their employment is against the United States.
Under the FTCA, a tort claim against the United States "shall be forever barred" unless it is first presented to the "appropriate Federal agency within two years after such claim accrues, " and then brought in federal court "within six months" after the agency denies the claim. 28 U.S.C. § 2401(b). There is no dispute that the Desirs never filed an administrative claim under the FTCA and missed the two-year statutory deadline for doing so. Counsel for the Desirs was apparently unaware of the fact that Dr. Hanjani and Ms. Ruiz were federal employees, or at least unaware of the significance of that fact for purposes of determining the relevant statute of limitations. The United States has moved to dismiss all of the counts originally asserted against Dr. Hanjani and Ms. Ruiz for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. [Dkt. 25.] The United States argues that because the Desirs did not file an administrative claim within two years of G.D.'s premature birth and death, they are "forever barred" from bringing this action against the United States. Thus, the United States seeks the dismissal of Counts VI through XV, and XXI, with prejudice. The Desirs urge the Court to find that they (and their counsel) were sufficiently diligent in seeking to ascertain Dr. Hanjani's employment status to warrant applying the doctrine of equitable tolling.
Following briefing by the United States and the Desirs and a hearing conducted on April 28, 2015, the Court notified the parties that "pursuant to Fed.R.Civ.P. 12(d), it may convert this motion to a motion for summary judgment under Fed.R.Civ.P. 56" and gave the Desirs an opportunity to supplement the record with additional information supporting their equitable tolling argument (and the United States an opportunity to respond). [Dkt. 40.] The Desirs and the United States subsequently submitted supplemental briefs and exhibits addressing equitable tolling.
Despite its sympathy for the Desirs' circumstances and frustration with the current procedural posture, the Court has no choice under the law but to grant the government's motion. There is no genuine dispute as to any material fact concerning the equitable tolling issue, and the government is entitled to judgment as a matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure. The doctrine of equitable tolling cannot be invoked where, as in this case, plaintiffs' counsel was actually notified of the federal status of BNHC and Dr. Hanjani within the two-year presentment period, yet still failed to file an administrative claim. Thus, the government's motion is GRANTED.
A. Ms. Desir's Medical Treatment and G.D.'s Premature Birth and Death
At the time of the events alleged in the complaint, Ms. Desir was a regular patient of BNHC, where she was treated by Dr. Hanjani, her OB/GYN. [Medical Record of Ossepha Saint Cyr Desir (Dkt. 35-1, Ex. A); Patient History Chart (id., Ex. B); January 20, 2012 Letter (Dkt. 29-2, Ex. 3).] On October 14, 2011, Ms. Desir sought treatment at the Emergency Room of Good Samaritan Medical Center ("Good Samaritan") in Brockton, Massachusetts, which is owned by Steward Health Care. [Compl. (Dkt. 1-4) ¶¶ 7-8; Affidavit of Fred S. Hurst, M.D. (Dkt. 45-3) ("Hurst Aff.") ¶ 1.] She was approximately 18 weeks pregnant and complained of abdominal pain. [Compl. ¶ 8; Hurst Aff. ¶ 1.] She was admitted overnight, seen by Dr. Hanjani, Dr. Oh, and Susan Wente, C.N.M. ("Ms. Wente") (who is not a party to this lawsuit), and discharged the next day. [Compl. ¶¶ 9-10; Hurst Aff. ¶ 1.]
On October 17, 2011, Ms. Desir was treated by Dr. Hanjani at BNHC. [Dkt. 35-1, Ex. A.] On October 21, 2011, one week after her previous admission to Good Samaritan, she returned to the Good Samaritan Emergency Room with severe abdominal pain and was again admitted overnight. [Compl. ¶¶ 11, 16; Hurst Aff. ¶ 5.] She was seen by Dr. Hanjani, Ms. Gallagher, Ms. Wente, and other staff. [Compl. ¶¶ 13, 16; Hurst Aff. ¶ 5.] On October 22, 2011, while Ms. Desir was still admitted, her son was born prematurely at 19 weeks gestational age. [Compl. ¶ 16; Hurst Aff. ¶ 7.] He died a short time later. [Compl. ¶ 18.] The Desirs allege that the premature birth and death of their son, G.D., was caused by the defendants' negligence in failing to perform certain procedures, including a pelvic examination and a cervical measurement, during Ms. Desir's admissions to Good Samaritan in October 2011.
B. Federal Status of BNHC and Its Employees, Including Dr. Hanjani and Ms. Ruiz
BNHC receives federal grant money from the United States Department of Health and Human Services ("HHS"). As of January 2011, BNHC was "deemed" by the Health Resource and Services Administration of HHS to be "an employee of the Public Health Service, " a designation that BNHC has since continued to hold.[HRSA Deeming Letters (Dkt. 14-1, Ex. A).] At the time of the events alleged in the complaint, Dr. Hanjani and Ms. Ruiz were both employees of BNHC and were both "acting within the scope of their employment as employees of the United States." [See Certification of United States Attorney pursuant to 28 U.S.C. § 2679(d)(1) & (2) and 28 C.F.R. § 15.4 (Dkt. 5-1, Ex. B).] Thus, BNHC, Dr. Hanjani, and Ms. Ruiz all have federal status for FTCA purposes, and any claims of negligence against Dr. Hanjani or Ms. Ruiz (or BNHC, which the Desirs did not name as a defendant) must be brought pursuant to the requirements of the FTCA, including the filing of an administrative claim within two years of the alleged harm-in this case, by October 22, 2013. 28 U.S.C. § 2401(b).
C. Actual Notice to Plaintiffs' Counsel of BNHC and Dr. Hanjani's Federal Status Within the FTCA's ...