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Duke v. Community Health Connections, Inc.

United States District Court, D. Massachusetts

January 11, 2019

GORDON DUKE, Plaintiff,



         Gordon Duke (“Plaintiff”) brought a negligence claim against the United States of America (“Defendant”) under the Federal Torts Claims Act (“FTCA”) claiming that Dr. Terry F. Osborne, II (“Dr. Osborne”) negligently prescribed him amphetamines, causing injury and damage after he relapsed into addiction. Defendant moves to dismiss Plaintiff's claim because he failed to timely file an administrative claims pursuant to the FTCA (Docket No. 10). For the reasons stated below, Defendant's motion is denied.


          The following facts are taken from Plaintiff's complaint (Docket No. 1) and assumed to be true at this stage of the litigation.

         Beginning in late 2010 or early 2011, Plaintiff sought treatment for amphetamine dependency, with Adderall as his drug of choice. On or about January 24, 2012, Plaintiff was admitted to Emerson Hospital for detox and treatment for withdrawal. On or about February 2, 2014, Plaintiff was transferred to McLean Hospital's Ambulatory Treatment Center at Naukeag to continue his treatment in an inpatient program. Plaintiff remained at McClean until March 5, 2012, when he successfully completed the inpatient program.

         In March 2012, Plaintiff became a patient of GGHC. In May 2012, Casie Short, P.A., prescribed Plaintiff Clonidine to ease his withdrawal symptoms. In July 2012, Plaintiff began treatment with Dr. Osborne and continued to see him until March 2014.

         By August 2012, Dr. Osborne prescribed Plaintiff amphetamine-based medication. Dr. Osborne had access to Plaintiff's medical records which indicated he was a recovering amphetamine addict. Further, Plaintiff's mother told Dr. Osborne that Plaintiff was a recovering amphetamine addict. Nonetheless, Dr. Osborne prescribed, and Plaintiff accordingly took, several amphetamine-based medications such as Selegiline, Vyvanse, and Adderall. By September 2013, Plaintiff began to show signs of relapse.

         Over time, Dr. Osborne increased the dosages of Plaintiff's amphetamine-based medications. By January 2014, Dr. Osborne was prescribing dangerous and potentially lethal amounts of amphetamine-based medications, including 100 mg daily of Adderall alone. By January 2014, Plaintiff had fully relapsed. Consequently, in May 2014, Plaintiff lost his job. Further, he suffered from paranoia, delusions, and sometimes could not sleep for days.

         In September and November of 2014, Plaintiff was arrested in Rhode Island for illegally obtaining Adderall. At one of Plaintiff's court appearances, Dr. Osborne falsely informed the prosecutor in Rhode Island Drug Court that Plaintiff was not drug dependent and that he did not struggle with addiction. Consequently, Plaintiff's case was removed from Drug Court.

         Plaintiff has been hospitalized or otherwise treated multiple times for his addiction since being prescribed amphetamines by Dr. Osborne and continues to exhibit symptoms of neurotoxicity. Not until October 2015 did Plaintiff overcome his relapse into addiction triggered by Dr. Osborne's treatment.

         On August 26, 2016, Plaintiff presented his claim to the U.S. Department of Health and Human Services pursuant to the Federal Tort Claims Act. On February 15, 2017, his claim was denied. On March 1, 2017, Plaintiff requested reconsideration by the U.S. Department of Health and Human Services, which was denied on September 15, 2017. The September 15, 2017 denial letter informed Plaintiff that, pursuant to 28 U.S.C. § 2401(b), he had six months within which to file suit in U.S. district court. Plaintiff then filed his claim with this Court on February 16, 2018.

         Standard of Review

         1. 12(b)(1) Motions and the FTCA

         Although the United States brings a 12(b)(1) motion to dismiss, the Supreme Court has held that “the FTCA's time bars are nonjurisdictional and subject to equitable tolling.” United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1638 (2015). Therefore, “dismissal cannot be determined under Rule 12(b)(1) but rather must be decided under Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P. 56.” Holloway v. United States, No. 15-CV-30016-MGM, 2015 WL 13229224, at *1 (D. Mass. Oct. 30, 2015), report and recommendation adopted, No. CV 15-30016-MGM, 2016 WL 1060835 (D. Mass. Mar. 17, 2016), aff'd, 845 F.3d 487 (1st Cir. 2017); see also Morales-Melecio v. United States, 890 F.3d 361, 367 (1st Cir. 2018) (noting that ...

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