M.J. Ex Rel. Jarvis v. Georgetown University Medical Center

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

M.J., a minor, by and through

Bianca Jarvis, his parent and

natural guardian,

Plaintiffs,

Civil Action No. 13-283 (GK)

v.

Georgetown University Medical

Center, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Bianca Jarvis ("Jarvis" or "Plaintiff") brings

this medical malpractice action, on behalf of her minor son,

M. J.' against the Georgetown University Medical Center,

Georgetown University Hospital, Lori A. Picco, M.D., and Phyllis

M. Rattey, R.N. (collectively, the "Georgetown Defendants"), and

the United States of America (the "Government").

This matter is before the Court on the Government's Motion

Upon consideration or-tile HO-Llon,

Opposition [Dkt. No. 12], and Reply [Dkt. No. 16], the entire

record herein, and for the reasons stated below, the

Government's Motion is granted.

I. BACKGROUND 1

A. Factual Background

On November 1, 1998, Jarvis was admitted to the Georgetown

University Hospital twenty-five weeks pregnant with complaints

of "abdominal spasms and spontaneous rupture of membranes."

Compl. <J[ 16. Over the next several days, she was monitored so

that her baby could be "timely delivered in the event of

infection and/or fetal distress." Compl. <J[<J[ 17-68. On November

6, 1998, Jarvis went into labor. Compl. <J[<j[ 69-74. The

attending physicians determined that her fetus should be

delivered via cesarean section, but after administering an

epidural, they found that she was completely dilated and

"decided to forego the cesarean section and proceed with a

vaginal delivery." Compl. <J[<j[ 95, 99-101. During the delivery,

a sonogram of the fetus indicated "terminal fetal bradycardia."

Compl. <J[ 103. 2 Forceps and traction were then used to extract

the fetus. Compl. <J[ 105.

1

The facts and relevant background are taken from the Complaint

[Dkt. No. 1-1], the Government's Certification Pursuant to 28

U.S.C. § 2679 [Dkt. No. 1-2], and the exhibits and declarations

appended to the parties' briefs. [Dkt. Nos. 5-2, 12-1].

2

Bradycardia is a slow heart rate. See STEDMAN'S MEDICAL DICTIONARY

["STEDMAN's"] 54300 (27th ed. 2000). Less than 100 beats per

minute is considered to be bradycardia in a fetus. Id.

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M.J. was born on November 7, 1998, at 12:27 a.m. Upon

deli very, he "was blue, with no respiratory effort or heart

rate[,]" and had "extensive bruising on his head, neck and

chest." Compl. ~~ 106-07. Following delivery, M.J. was

diagnosed with "perinatal asphyxia, respiratory distress

syndrome, and extreme prematurity," and was admitted to the

neonatal intensive care unit, where he remained for sixteen

weeks. Compl. ~~ 108-110. 3 M. J. now suffers from permanent

brain damage, orthopedic injuries, global developmental delay,

and other complications, which Plaintiff attributes to the

timing and method of M. J. 's deli very, specifically Defendants'

decision to deliver M.J. vaginally rather than by cesarean

section. See Compl. ~~ 112, 117, 119.

B. Procedural Background

On January 2, 2013, more than 14 years after M.J.'s birth,

Jarvis filed this medical malpractice action in District of

Columbia Superior Court. The case was initially brought against

the Georgetown Defendants and Dr. Christian Macedonia, one of

the doctors involved in M.J.'s delivery. On March 4, 2013, the

Government substituted itself as a party defendant on behalf of

3

Asphyxia is oxygen deprivation resulting from the "[i]mpaired

or absent exchange of oxygen and carbon dioxide on a ventilatory

basis." See STEDMAN'S at 34 810.

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Dr. Macedonia, and removed the case to this Court pursuant to

the Federal Employees Liability Reform and Tort Compensation Act

of 1988 (the "Westfall Act"), 28 U.S.C. § 2679. According to

the removal papers, at the time of M.J.'s delivery, Dr.

Macedonia was a federal employee, serving as a Major in the

United States Army and completing a fellowship at Georgetown

University Hospital. Plaintiff's claim against Dr. Macedonia is

therefore deemed to be an action against the United States under

the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). See

28 u.s.c. § 2679(d). Dr. Macedonia was dismissed as a defendant

on April 10, 2013.

On March 20, 2013, the Government moved to dismiss

Plaintiff's FTCA claim pursuant to Fed. R. Civ. P. 12 (b) (1) for

lack of subject matter jurisdiction [ Dkt. No. 5] . On April 3,

2013, Plaintiff filed her Opposition [Dkt. No. 12], and on May

15, 2013, the Government filed a Reply [Dkt. No. 16].

I I . STANDARD OF REVIEW

Under Rule 12(b) (1), the plaintiff bears the burden of

proving by a preponderance of the evidence that the Court has

subject matter jurisdiction. See Shuler v. United States, 531

F.3d 930, 932 (D.C. Cir. 2008). In deciding whether to grant a

motion to dismiss for lack of jurisdiction, the court must

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"accept all of the factual allegations in [the] complaint as

true [.]" Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug

Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) (citing United

States v. Gaubert, 499 U.S. 315, 327 (1991)) (quotation marks

omitted) . The Court may also consider matters outside the

pleadings, and it may rest its decision on its own resolution of

disputed facts. See Herbert v. Nat' 1 Acad. of Sciences, 974

F.2d 192, 197 (D.C. Cir. 1992). 4

III. ANALYSIS

A. The Federal Tort Claims Act

It is basic hornbook law that the United States, as

sovereign, is immune from suit unless it consents to be sued.

United States v. Mitchell, 445 U.S. 535, 538 (1980). By

enacting the FTCA, Congress partially waived the Government's

sovereign immunity for claims of "personal injury caused

by the negligent or wrongful act or omission of any employee of

the Government while acting within the scope of his office or

4

The parties refer to the difference between a "factual

challenge" and a "facial challenge" to subject matter

jurisdiction. See Gov' t' s Mot. at 2; Pl.'s Opp' n at 3. While

the Court does not find explicit support for this dichotomy in

D.C. Circuit case law, the distinction between the two types of

motions is not material to resolving this Motion. The important

point is that, while the Court may consider materials outside of

the pleadings, it still accepts the factual allegations in the

Complaint as true. See Jerome Stevens Pharmaceuticals, Inc.,

402 F.3d at 1253-54.

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employment." 28 u.s.c. § 1346 (b). However, Congress

conditioned such waiver on the requirement that a plaintiff

present her claim "in writing to the appropriate Federal agency

within two years after such claim accrues," and thereafter file

her action in court within six months of agency's final denial

of her claim. 28 U.S.C. § 2401(b).

Under the Westfall Act, the FTCA is the exclusive mechanism

by which a plaintiff may seek damages for any "negligent or

wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment." 28 U.S.C.

§ 2679(b) (1). Where, as in this case, a plaintiff has

originally sued the employee in his or her individual capacity,

the Westfall Act deems the action to be one against the

Government under the FTCA, and requires the Government to be

substituted as party defendant in the employee's place. See 28

u.s.c. § 2679(d) (2).

Because substitution of the United States as a party might

occur long after the FTCA's two-year limitations period has

expired, the Westfall Act contains a "savings provision" for

actions initially brought against an individual Government

employee, subsequently converted into an FTCA claim against the

Government, and thereafter dismissed for failure to file an

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administrative claim. See Mittleman v. United States, 104 F.3d

410, 413 (D.C. Cir. 1997) (citing 28 U.S.C. § 2679(d) (5) (A)).

In such cases, the savings clause provides a 60-day grace period

for the plaintiff to file her claim with the appropriate agency,

but only if such "claim would have been timely had it been filed

on the date the underlying civil action was commenced [.]" 28

u.s.c. § 2679(d) (5). Otherwise, a claim not timely presented to

the appropriate federal agency is "forever barred." 28 U.S.C. §

2401(b); Mittleman, 104 F.3d at 413.

B. Plaintiff's Claim Is Time-Barred

It is undisputed that .Jarvis did not file an administrative

claim before commencing this case. See Def.'s Mem. at 4 & Ex. 2

(Decl. of Major Linda A. Chapman); Pl.'s Opp'n at 5. The

parties dispute, however, whether she may exhaust her

administrative remedies now that she is aware of Dr. Macedonia's

previous status as a federal employee. According to the

Government, Plaintiff's claim is barred by the FTCA' s two-year

statute of limitations. Plaintiff counters that her claim is

not time-barred because it did not accrue until this year, and

in the alternative, that equitable tolling should apply to

permit her case to proceed.

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1. M.J.'s Claim Accrued in 1998

Plaintiff first argues that M. J. 's claim did not accrue

until March 2013, when she learned of Dr. Macedonia's status as

a Government employee. Pl.'s Opp' n at 6-7. The Government

contends that M.J.'s claim accrued on M.J.'s date of birth, when

Jarvis learned of the injuries she now attributes to the

Government. Reply at 7-11.

Accrual of a claim under the FTCA is governed by federal

law. See Sexton v. United States, 832 F.2d 629, 633 n.4 (D.C.

Cir. 1987). The seminal case on FTCA medical malpractice claims

is Kubrick v. United States, 444 U.S. 111 (1979). In Kubrick,

the Supreme Court held that a medical malpractice claim accrues

when the plaintiff knows ~the critical facts that [s]he has been

hurt and who has inflicted the injury," even if she does not

know that the injury was ~negligently inflicted." Kubrick, 444

U.S. at 122, 123. The Court reasoned that:

A plaintiff . armed with the facts about the harm

done to him, can protect himself by seeking advice in

the medical and legal community. To excuse him from

promptly doing so by postponing the accrual of his

claim would undermine the purpose of the limitations

statute, which is to require the reasonably diligent

presentation of tort claims against the Government.

Id. at 123.

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The D.C. Circuit has construed Kubrick to stand for the

proposition that "a plaintiff's understanding of the basic

nature of the [allegedly improper] treatment should suffice to

begin the statute running." Sexton, 832 F.2d at 633. Stated

differently, a medical malpractice claim accrues when the

plaintiff possesses sufficient "historical facts associated with

the injury" to permit her to "undertake a reasonably diligent

investigation to determine whether a cause of action may lie."

Id. at 633-34; see also McCullough v. United States, 607 F. 3d

1355, 1359 (11th Cir. 2010) (a medical malpractice claim accrues

when plaintiff "is, or in the exercise of reasonable diligence

should be, aware of both [her] injury and its connection with

some act of the defendant") (citation omitted).

Applying these principles to the instant case, it is

undisputed that Jarvis knew of M.J.'s injuries on the day he was

born. According to the Complaint, newborn M. J. was "blue with

--------=-n'--'o'-----_r__ce_sRiratory effort or heart rate," and had "ext-ensive

bruising on his head, neck and chest." Comp l. en en 1 0 6, 107 .

These obvious physical symptoms, and the doctors' related

diagnosis of perinatal asphyxia and respiratory distress

syndrome, put Jarvis on notice that M.J. had suffered an injury

related to oxygen deprivation, even if she did not then know its

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full extent or its future impact on M. J.' s development. See

Wallace v. Kato, 549 U.S. 384, 391 (2007) ("The cause of action

accrues even though the full extent of the injury is not then

known or predictable.") (citations omitted).

Jarvis also possessed sufficient information to prompt a

"reasonably diligent" inquiry into whether Defendants' medical

care - specifically the decision to proceed by vaginal delivery

rather than cesarean section caused M. J. 's condition. See

Sexton, 832 F. 2d at 633-34. It is uncontested that Dr. Picco

initially informed Jarvis that M.J. would be delivered by

cesarean section, before the doctors changed their minds and

opted for vaginal delivery. Compl. ~ 96; Pl.'s Opp'n, Ex. A at

Consent for Surgery, Anesthetics, and Other Medical Services and

Operative Report. This fact, in conjunction with M.J.'s

conspicuous injuries, gave Jarvis a reasonable basis to question

whether the doctors' choice was proper, and to seek further

_______

l_egal and medical advice on that question.

Plaintiff contends in her Opposition that her claim did not

accrue in 1998 because Defendants told her that M.J.'s condition

was caused by prematurity. Pl.'s Opp' n at 6. However, the

Complaint itself alleges that "M.J. was diagnosed with perinatal

asphyxia, respiratory distress syndrome, and extreme

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prematurity." Compl. CJI 110 (emphasis added). Under Sexton, the

fact that an injury has multiple causes does not negate a

plaintiff's duty to make a reasonable inquiry into all other

potential causes once she is aware of the relevant facts

underlying that cause. See Sexton, 8 32 F. 2d at 633-34

(plaintiffs' belief that death resulted from leukemia rather

than negligence did not postpone accrual where plaintiff

understood "basic nature of the [allegedly negligent]

treatment").

Plaintiff also argues that her FTCA claim could not accrue

until she discovered the Government's involvement in M.J.'s

injury. Pl.'s Opp'n at 6-7. The D.C. Circuit has not addressed

such an argument, but other circuits have rejected it.

e.g., Ramos v. Dep't of Health and Human Servs., 429 F. App'x

947, 951 (11th Cir. 2011) ("That [Plaintiff] did not learn until

later that the government was the proper defendant does not

alter [accrual] analysis."); Skwira v. United States, 344 F.3d

64, (1st Cir. 2003) ("In the medical malpractice context,

knowledge of the legal status of the physician as a federal

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employee is not required for claim accrual.") (emphasis in

original) (citing cases) . 5

Further, by including the savings clause in the Westfall

Act so as to give additional time for exhaustion to plaintiffs

whose state court actions would otherwise be timely, Congress

already provided for circumstances in which a plaintiff is

initially unaware that the Government is the proper defendant.

See 28 U.S.C. § 2679(d) (5) (A) . 6 There would be little need for

this clause if Congress also intended a plaintiff's claim not to

accrue until she knew of the Government's role in her case.

Therefore, M. J. 's claim accrued in 1998 regardless of whether

5

Plaintiff cites Valdez v. United States, 518 F.3d 173 (2d Cir.

2008) and Danzan v. United States, 762 F.2d 56 (7th Cir. 1985),

but neither endorse the rule she urges. In Valdez, the Second

Circuit merely observed that equitable tolling might apply where

a plaintiff had no reason to know her medical provider was a

government entity. Valdez, 518 F.3d at 178 n.2 & 182-85. In

Danzan, the Seventh Circuit held that when an injury has a

natural cause (in that case, cancer), and an accelerating cause

-----~ tt-r±-butab-l-e-----to----the-@overnment--(-ne-g--1--±-gen L Lre-atm-ent-)---,-----t-he-PTeA: · - - - - -

claim does not accrue until a plaintiff has reason to know of

the Government-related cause. Danzan, 762 F.2d at 59-60.

Neither Valdez nor Danzan held that a plaintiff's claim does not

accrue until she knows that the employee alleged to have caused

her injury is a government employee.

6

The savings clause does not apply in this case because Jarvis

did not file her state court action until January 2013, more

than fourteen years after the statute of limitations expired.

28 U.S.C. § 2679(d) (5) (A).

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Jarvis had any reason to suspect that Dr. Macedonia was a

federal employee.

2. Equitable Tolling Does Not Apply

Plaintiff also argues that even if M. J.' s claim accrued

earlier, the statute of limitations should be equitably tolled

because she·had no reason to suspect Dr. Macedonia was a federal

employee, and because her claims were otherwise timely under

District of Columbia law. 7 The Government counters that the

FTCA's limitations period is a prerequisite to the Court's

subject matter jurisdiction, and therefore, is not subject to

equitable tolling. 8 The Court need not reach that issue,

however, because, as the Government also points out, Plaintiff

has not made a convincing case for equitable tolling. Reply at

4-7.

Equitable tolling, where it applies, "permits a plaintiff

to avoid the bar of the limitations period if .despite all due

diligence she is unable to obtain vi tal

----------------

information bearing on

7

Under District of Columbia law, the three year statute of

limitations for medical malpractice claims of minors is tolled

until their eighteenth birthday. D.C. Code §§ 12-301, 12-

302 (a) (1).

8

Notwithstanding this implicit dispute about whether the FTCA's

limitation period is "jurisdictional," the parties agree that

Rule 12(b) (1) supplies the applicable standard of review for all

issues raised in this Motion. See Def.' s Mem. at 2-3; Pl.'s

Opp'n at 3-4.

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the existence of her claim." Smith-Haynie v. Dist. of Columbia,

155 F.3d 575, 579 (D.C. Cir. 1998) (citing Cada v. Baxter

Healthcare Corp., 920 F.2d 44 6, 451 (7th Cir. 1990)).

"Generally, a litigant seeking equitable tolling bears the

burden of establishing two elements: ( 1) that [ s] he has been

pursuing [her] rights diligently, and ( 2) that some

extraordinary circumstance stood in [her] way." Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep't of

Veterans Affairs, 498 U.S. 89, 96 (1990)).

In Norman v. United States, 467 F.3d 773, 775-76 (D.C. Cir.

2006), our Court of Appeals addressed equitable tolling in

circumstances nearly identical to those presented here. The

plaintiff, Norman, was hit by a rental car and filed a claim

with the driver's insurance provider shortly thereafter.

However, the insurance company did not inform him until two and

a half years later that the driver was a federal employee acting

within the scope of his employment. Norman subsequently filed

his case within the District of Columbia's three-year

limitations period for personal injury actions, but outside the

FTCA's two-year limitations period. The District Court rejected

Norman's request for equitable tolling and dismissed the case as

time-barred. On appeal, the Court of Appeals declined to

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address whether the FTCA limitations period may ever be

equitably tolled because it concluded that, in any event, Norman

"failed to meet the due diligence requirement for equitable

tolling." Id. at 776.

The same conclusion holds here. Like the plaintiff in

Norman, Jarvis has not identified "any efforts prior to the

expiration of the FTCA' s two-year statute of limitations-much

less reasonably diligent efforts-to discover [Dr. Macedonia's]

employer." Id. Her failure to do so is not excused simply

because M.J.'s claim is otherwise timely under District of

Columbia law. As the D. C. Circuit emphasized, "[i] f that were

enough for equitable tolling the FTCA's statute of

limitations would have no bite [,]" because plaintiffs would be

able to circumvent the statute by merely filing claims in a

jurisdiction with a longer limitations period. Id.

In addition, the due diligence requirement for equitable

tolling is not relaxed merely because Jarvis had no basis during

the fourteen years that elapsed since the injury occurred to

know that Dr. Macedonia worked for the Government. As the Court

of Appeals observed, "if prejudice were enough, then equitable

tolling would no longer be restricted to 'extraordinary and

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carefully circumscribed circumstances.'" Id. at 777 (citing

Smith-Haynie, 155 F.3d at 580) . 9

Plaintiff attempts to distinguish Norman by arguing that

the plaintiff in that case had a greater reason to assume the

tort feasor was a federal employee because "when dealing with an

automobile accident in the District of Columbia, there would be

a high likelihood that the driver was going about his business

for any one of the numerous government agencies in the area."

Pl.'s Opp'n at 11. The D.C. Circuit emphatically rejected such

an argument, observing that "[w] e think it entirely unworkable

to calibrate the required level of due diligence to the number

of federal employees living in the region where the accident

occurred." Norman, 467 F. 3d at 778. Instead, "due diligence

must have the same meaning everywhere." Id. Here, as in

Norman, Plaintiff's "claim for equitable tolling fails because

at no time during the FTCA's two-year statute of limitations did

9

In fact, in Norman, the D.C. Circuit concluded that equitable

tolling would not even apply if the insurance carrier had

"deliberately withheld information about [the tortfeasor's]

employment status" because Norman sought "equitable tolling

against the government, not against [the insurance company]."

Norman, 467 F.3d at 777 (emphasis added)

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[s]he make any e~fort - diligent or otherwise - to identify [Dr.

Macedonia's] employer." Id. 10

"It goes without saying that statutes of limitations often

make it impossible to enforce what were otherwise perfectly

valid claims." Kubrick, 444 U.S. at 125. As the Seventh

Circuit observed in Sexton,

any statute of limitations that puts inquiry burdens

on a plaintiff, as this one clearly does,

entails a degree of ghoulish behavior. Patients or

survivors, whose instinct may well be to shut off from

their minds the grim experience through which they

have passed, are required instead to follow up on

their leads. For persons of any sensitivity this must

be a difficult or even repugnant process. Yet, to

protect defendants from stale claims, legislatures put

potential plaintiffs to the hard choice of proceeding

with such inquiries or risking loss of possible

claims.

832 F.2d at 636 (citations omitted).

The FTCA bars claimants from bringing suit in federal court

unless they have presented their claim to the Government within

two years of the claim's accrual. McNeil v. United States, 508

u.s. 106, 113 (1993). Jarvis never filed any administrative

10

The Government argues that Plaintiff could have quickly

discovered Dr. Macedonia's status as a federal employee, and

cites a number of public websites listing Dr. Macedonia's

affiliation with the United States Army. See Gov't's Reply at 6

n. 2. Given that this information was presented for the first

time in the Government's Reply, and Plaintiff did not have the

opportunity to respond to it, the Court does not rely on it.

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claim, and is now time barred from doing so. Accordingly,

Plaintiff's claim against the Government shall be dismissed for

lack of subject matter jurisdiction.

C. The Case Shall Be Remanded to Superior Court

The claim against Dr. Macedonia was the sole basis on which

the case was removed to this Court. [Dkt. No. 1]. Having

concluded that the Court lacks jurisdiction over such claim, the

Court shall remand the case to Superior Court.

IV. CONCLUSION

For the foregoing reasons, the Government's Motion is

granted, and the case shall be remanded to Superior Court. An

Order shall accompany this Memorandum Opinion. 11

August 22, 2013

Copies to: attorneys on record via ECF

11

Plaintiff requests that if the Court determines that equitable

tolling applies but still dismisses the case due to her failure

to exhaust her administrative remedies, the Court should dismiss

the case without prejudice. Pl.'s Opp' n at 12. Because the

Court determines that equitable tolling does not apply and that

Plaintiff's claims are untimely, it shall dismiss the case with

prejudice.

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