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Camerano v. United States

United States District Court, D. Massachusetts

July 7, 2016

PETER CAMERANO, Personal Representative of the Estate of Patrick Camerano, Plaintiff,
v.
UNITED STATES of AMERICA, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR LEAVE TO AMEND

          SAYLOR, J.

         This is an action for negligence and wrongful death under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. Plaintiff Peter Camerano is the personal representative of the estate of Patrick Camerano, his late father. The complaint alleges that negligence by personnel employed by the East Boston Neighborhood Health Center ("EBNHC"), a federal facility, resulted in the death of Patrick Camerano.

         The complaint was filed on August 3, 2015. It named as defendants East Boston Neighborhood Health Center Corporation; East Boston Neighborhood Health Center; and various individual healthcare providers. In November 2015, defendants moved to dismiss the claims against the individual defendants and for an order deeming this action to be an action against the United States because the individual defendants were federal employees at the time of the alleged acts.

         On February 8, 2016, the Court allowed the substitution of the United States as defendant in place of the individually named defendants pursuant to 28 U.S.C. § 2679(d). The United States has now moved to dismiss the claim on the ground that plaintiff failed to file an administrative claim within two years as required by the FTCA. Plaintiff has opposed the motion and has filed a motion to amend to add a new claim against a former individual defendant.

         At oral argument, the parties agreed that the motion to dismiss should be converted to a motion for summary judgment. For the reasons described below, defendant's motion for summary judgment will be granted, and plaintiff's motion to amend will be denied.

         I. Background

         A. Factual Background

         Except where otherwise noted, the following facts are either undisputed or taken in the light most favorable to the plaintiff.

         Peter Camerano is the son of the late Patrick Camerano and the personal representative of his estate. (Camerano Aff. ¶ 1-2). As of January 2012, Patrick was a residing at Eastpointe Nursing Home after a surgery. (Id. at ¶ 6). In February, Patrick was transferred from Eastpointe Nursing Home to EBNHC for medical management, caregiver respite, and medication management. (Am. Compl. ¶ 11). EBNHC personnel were made aware that Patrick had a recent history of a left hip fracture and a fall. (Id. at ¶ 13). According to the complaint, EBNHC did not provide Camerano with "interventions or plans for limiting his wandering behavior." (Id. at ¶ 17). The complaint further alleges that EBNHC did not provide "a safety plan including proper monitoring by staff and proper motion sensing alarm systems." (Id. at ¶ 18).

         On February 26, 2012, at approximately 3:00 a.m., Patrick was walking in the hall of EBNHC. (Id. at ¶ 21). While in the hall, Patrick fell and struck the back of his head. (Id. at ¶ 20). The fall was not witnessed. More than 24 hours after the fall, Patrick showed signs of distress and was hospitalized at the Boston Medical Center on February 27, 2012. (Id. at ¶ 24). About February 28, Peter received a call from a nurse at EBNHC who told him that his father had an accident and had been hospitalized. (Camerano Aff. ¶ 10). When Peter asked what happened, the nurse said that Patrick had fallen, but she was "not totally sure." (Id.).

         At the hospital, doctors diagnosed a subdural hematoma, (Am. Compl. ¶ 25), which they determined was likely inoperable on account of Patrick's advanced age, (Id. at ¶ 26). Peter conferred with the doctors and decided not to proceed with an operation, but to move Patrick to palliative care. (Def. Mem. Ex. 5). Patrick was discharged and taken to hospice care at Eastpointe Nursing Home, where he died on March 1, 2012. (Camerano Aff. ¶ 13). The cause of death was listed on the death certificate as a "subdural hemorrhage" that resulted from an "unwitnessed fall" at a "respite facility" at "26 Sturgis Street, Winthrop, MA." (Def. Mem. Ex. D).

         In June 2012, Peter requested medical records from EBNHC. (Pl. Mem. Ex. 1 ¶ 15). According to Peter, he did so "not knowing where my father was when he was injured." (Id.). He further stated that "[a]fter reading the records, it was unknown to me what respite/nursing home my late father was in when he was injured." (Id. ¶ 16).

         On August 29, 2012, Peter, along with counsel, signed a voluntary administration statement for the Massachusetts Probate and Family Court. Among the listed assets of the probate estate was a "[w]rongful death action regarding [a] nursing home facility." (Pl. Mem. Ex. 4).

         On September 21, 2012, Peter Camerano became the administrator of Patrick's estate, which "authorize[ed] him to obtain medical records concerning the care and treatment of the deceased." (Am. Compl. ¶ 29). Peter contends that he received "medical records concerning the Defendant'[s] care of the deceased" on October 29, 2012. (Id. at ¶ 30). He further contends that after reviewing the records with counsel he learned for the first time that the accident happened at EBNHC. (Camerano Aff. ¶ 18).

         B. Procedural Background

         On July 16, 2014, Peter filed an administrative complaint with the United States Department of Human Health and Services. On August 3, 2015, he filed a complaint with this Court. The complaint named as defendants East Boston Neighborhood Health Center Corporation; East Boston Neighborhood Health Center; James Pedulla, M.D.; Diane M. Maraio, L.P.N.; Pamela Woo, R.N.P.; Michelle Stimpson, R.N.; and Nancy Segal, R.N.P. On February 8, 2016, the Court dismissed the claims against the original defendants and substituted the United States as the proper party.

         The United States has moved to dismiss the complaint, contending, in substance, that the FTCA claim was untimely because it was not filed within the two-year FTCA limitations period, and that the only proper remedy available to plaintiff is through the FTCA. The government submitted various documents outside the pleadings with its motion to dismiss. At the motion hearing, the parties agreed that the Court could convert the motion into a motion for summary judgment and that no further briefing or evidentiary submission was necessary. See Fed. R. Civ. P. 12(d).

         II. L ...


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