United States District Court, D. Massachusetts
PETER CAMERANO, Personal Representative of the Estate of Patrick Camerano, Plaintiff,
UNITED STATES of AMERICA, Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR LEAVE TO
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.
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.
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.
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.
where otherwise noted, the following facts are either
undisputed or taken in the light most favorable to the
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).
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.).
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).
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).
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).
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).
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
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).