Hagan v. United States

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LARRY HAGAN, et al.,

Plaintiffs,

v. Civil Action No. 12-916 (CKK)

UNITED STATES OF AMERICA,

Defendant.

DANA WILSON,

Plaintiff,

v. Civil Action No. 15-90 (CKK)

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION AND ORDER

(August 15, 2017)

These consolidated cases emerge from alleged medical malpractice by agents of the

United States with respect to Plaintiff L.C.H., a minor, which allegedly resulted in a severe

brain injury. Plaintiffs Hagan and Wilson, the parents of L.C.H., seek damages under the

Federal Tort Claims Act (“FTCA”) stemming from the alleged malpractice. Pending before

the Court are cross-motions for summary judgment on the government’s statute of

limitations defense. For the reasons detailed below, the Court concludes that summary

judgment in favor of either party is unwarranted. A determination of when Plaintiffs

became aware of L.C.H.’s brain injury requires a weighing of the evidence and the making

of credibility determinations, neither of which are appropriate on a motion for summary

judgment. Accordingly, upon consideration of the pleadings, 1 the relevant legal authorities,

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The Court’s consideration has focused on the following documents: Pls.’ Mot. for Partial

Summ. J. With Respect to the Government’s Seventh Defense of Statute of Limitations,

ECF No. 50 (“Pls.’ Mem.”); Statement of Undisputed Materials Facts in Support of Pls.’

Mot. for Partial Summ. J., ECF No. 50-1 (“Pls.’ Stmt.”); Def.’s Mot. to Dismiss or, in the

Alternative, for Summ. J., ECF No. 51 (“Def.’s Mem.”); Def.’s Statement of Material

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and the record as a whole, Plaintiffs’ [50] Motion for Partial Summary Judgment is

DENIED, and Defendant’s [51] Motion for Summary Judgment is DENIED. 2

I. BACKGROUND

A. Procedural History

This case was previously dismissed for lack of subject-matter jurisdiction pursuant

to Federal Rule of Civil Procedure 12(b)(1), based on the running of the FTCA’s statute of

limitations. See L.C.H. ex rel. Hagan v. United States, No. 12-CV-916 RLW, 2012 WL

6570685, at *6 (D.D.C. Dec. 14, 2012) (Wilkins, J.). That dismissal under Rule 12(b)(1)

was vacated and remanded by the D.C. Circuit in light of the Supreme Court’s decision in

United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015), which held that the FTCA’s

statute of limitations is not jurisdictional. This Court subsequently denied Defendant’s

motion to dismiss pursuant to Rule 12(b)(6), and found that summary judgment on the

government’s statute of limitations defense was premature because discovery had yet to be

taken. See Hagan v. United States, 197 F. Supp. 3d 30, 33 (D.D.C. 2016).

B. Factual Background

L.C.H was born on April 3, 2007 at National Naval Medical Center (“NNMC”) at

a gestational age of under 25 weeks. Pls.’ Stmt. ¶ 1. L.C.H. was born with a number of

Facts, ECF No. 51-1 (“Def.’s Stmt.”); Pls.’ Opp’n to Def.’s Mot. to Dismiss, or, in the

Alternative, for Summ. J., ECF No. 52 (“Pls.’ Opp’n”); Def.’s Opp’n to Pls.’ Mot. for

Partial Summary Judgment, ECF No. 53 (“Def.’s Opp’n”); Pls.’ Reply Mem. in Response

to Def.’s Opp’n to Pls.’ Mot. for Partial Summ. J., ECF No. 54 (“Pls.’ Reply”); Reply in

Supp. of Def.’s Mot. for Summ. J., ECF No. 55 (“Def.’s Reply”). The Court has also

reviewed all of the evidentiary materials attached to these documents.

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Although Defendant’s [50] Motion was initially styled as both a motion to dismiss and a

motion for summary judgment, Defendant has clarified that the motion is only for summary

judgment. Def.’s Reply, at 1 n.1.

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severe medical conditions, but was finally discharged on June 15, 2007. Id. ¶ 2. On

September 8, 2007, Plaintiffs took L.C.H. to the NNMC emergency department,

complaining of poor feeding. Id. ¶ 7. Later that evening, L.C.H. was transferred by

helicopter to Walter Reed Army Medical Center (“Walter Reed”). Id. ¶ 8.

At Walter Reed, L.C.H. was initially observed on the regular pediatric floor, but in

the early morning of September 9, 2007, he was transferred to the Pediatric Intensive Care

Unit (“PICU”) because of his worsening mental and respiratory status. Id. ¶ 10. Then,

shortly after 8:00 A.M., L.C.H. was transferred by ambulance to Children’s National

Medical Center (“CNMC”). Id. ¶ 13. The reason for the transfer is disputed by the parties

and is not relevant for purposes of the pending motions. During the evening of the same

day, an exploratory laparotomy was performed on L.C.H., which identified a bowel

obstruction, and part of L.C.H.’s bowel was removed. Id. ¶ 17; Def.’s Stmt. ¶ 10.

On September 10 and 11, 2007, L.C.H. suffered several seizures and was given

Ativan. Def.’s Stmt. ¶¶ 12–13. Plaintiff Wilson observed one of these seizures, noting that

it appeared as a “little shaking of [L.C.H.’s] arm . . . .” Def.’s Ex. C, at 74. Plaintiff Hagan

was told about a seizure, but did not observe it himself. Def.’s Ex. G, at 112–13 (“[T]he

doctor told me that [L.C.H.] had a seizure right there in front of me, and I was like,

‘Where?’ That’s all I remember about the seizure conversation.”). In addition, both

Plaintiff Hagan and Plaintiff Wilson testified that they were told by medical professionals

at CNMC, within a few days of L.C.H.’s admission to the hospital, that L.C.H. had suffered

a stroke. Def.’s Ex. C, at 86; Ex. G, at 122. The exact timing of the stroke is disputed, but

not the fact that it occurred. Def.’s Resp. to Pls.’ Stmt., ECF No. 53-2, ¶ 19 (it is not “in

dispute that L.C.H. suffered a stroke between September 8–10, 2007”; rather, the

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government disputes that the stroke occurred during transport from Walter Reed to

CNMC).

On September 11, 2007, a CT scan was performed on L.C.H. Def.’s Stmt. ¶ 17. The

CT scan found “[e]dema throughout the bilateral frontal and teporoparietal lobes of unclear

etiology,” and “[s]uspect hypodensity in watershed areas of the centrum semiovale and

posterior basal ganglia.” Def.’s Ex. H. According to the testimony of Plaintiffs’ expert, Dr.

Michael Johnston, the finding of “edema” means that “there is increased water content of

the brain, throughout the bilateral, frontal and temporal lobes.” Def.’s Ex. E, at 45. The

second finding, of “hypodensity,” “refers to areas that may be lower density and could

indicate some reduction in blood flow to those areas.” Id. at 46. The reference to the

“watershed” is “something that is . . . caused by reduction in blood pressure.” Id.

On September 12, 2007, Plaintiffs were briefed by Dr. Catherine Corriveau, the

PICU attending at CNMC, and other unidentified individuals from the Neurology Service

and Social Work. Def.’s Stmt. ¶ 20. The briefing occurred after Plaintiff Hagan attempted

to copy L.C.H.’s bedside charts and records and expressed “the desire to review some of

[L.C.H.]’s clinical course over the past 24 [hours].” Id. ¶ 19 (citing Ex. J, CNMC 1895).

Dr. Corriveau does not have an independent recollection of what she told Plaintiffs on

September 12, but a contemporaneous note written by her states that the “[p]arents

understand the severity of [L.C.H.’s] neurologic and intestinal injuries.” Def.’s Ex. J; Ex.

Q, at 31–34. According to Dr. Corriveau, “this note and how [she] wrote it would reflect

that we gave [Plaintiffs] very grim news about both [L.C.H.’s] neurologic status and the

prognosis for recovery . . . .” Def.’s Ex. Q, at 34. Plaintiff Hagan recalls that on September

12, he and Plaintiff Wilson “met with several doctors and other health care providers,” who

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told them that their “son was very sick, and that it was too soon to predict the outcome and

that ‘only time will tell.’” Pls.’ Ex. 12, Hagan Decl. ¶ 9.

On September 17, 2007, an MRI was performed on L.C.H.’s brain. Def.’s Stmt. ¶

23. The MRI showed “[d]iffuse cerebral edema/infarction.” Def.’s Ex. M, CNMC 2155.

“Infarction means stroke.” Def.’s Ex. E, at 48. A note by the Social Work department,

dated September 20, 2007, states that the “[p]arents have met [with] neurology to discuss

MRI results.” Def.’s Ex. K, CNMC 1974. According to Plaintiff Hagan, he and Plaintiff

Wilson were “told that a brain CT and brain MRI showed abnormalities but that it was too

soon to tell whether these abnormalities would have any long-term effects on [their] son’s

development.” Pls.’ Ex. 16, Hagan Decl. ¶ 11.

L.C.H. was discharged from CNMC on November 1, 2007. The discharge

summary states the following:

NEURO: [L.C.H. was] noted to have B/L cerebral infarct and secondary

diffuse cerebral edema. Confirmed by CT scan. [Patient] noted to have

seizure activity and was started on fosphenytoin and phenobarbital.

[Seizure] activity stabilized and phenobarbital wean initiated. Final dose of

phenobarb[ital] on 7/28. Neurology following. PM&R consulted as

[patient] at risk for neuromotor dysfunction and recommended follow up in

neuro and PM&R clinic. PT/OT consulted and [recommend] PT 3-5 days

per week.

Def.’s Ex. N, CNMC 1847; Def.’s Stmt. ¶ 24. Plaintiff Wilson testified that she

remembered receiving the discharge paperwork. Def.’s Ex. C, Wilson Depo., at 88–90.

Shortly after the discharge, on November 21, Dr. Clarivet Torres wrote a letter to Dr.

Anthony Sandler after seeing L.C.H. at the Intestinal Care Clinic at CNMC. Dr. Torres

noted that L.C.H. “had a rough postoperative stay with a prolonged ventilation for about a

week, and some brain hemorrhage, but overcame all of these problems.” Pls.’ Ex. 24

(emphasis added).

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On December 13, 2007, L.C.H. was seen for a primary care visit at NNMC. Pls.’

Stmt. ¶ 30. Under an entry entitled “Stroke Syndrome,” Dr. Tiffany Ohta wrote that L.C.H.

had a history

of apparent stroke while hospitalized [from August to September 2007]. On

exam, there does not appear to be neurological sequelae. Has neurology

referral in computer, need to schedule [follow-up] at [Walter Reed]. Father

to obtain copies of MRI from CNMC on disk to bring to [appointment].

Pls.’ Ex. 25, NNMC 1383. Dr. Ohta also noted that L.C.H.’s “[m]ental status was normal.”

Id. Dr. Chad Mao agreed with this assessment. Id. Dr. Ohta and Dr. Mao made almost

identical findings on January 31, 2008, noting again that L.C.H.’s “[m]ental status was

normal,” and that there was “currently . . . no apparent neurologic sequelae from stroke

suffered during initial admission to CNMC [in August/September 2007].” Pls.’ Ex. 26,

NNMC 1388. Then again, on February 21, 2008, Dr. Ohta and Dr. Mao found that L.C.H.’s

“[m]ental status was normal” and that his apparent stroke at CNMC was “without

significant neurologic sequelae.” Pls.’ Ex. 28, NNMC 1397–98. They further noted that

L.C.H. had an appointment “with [pediatric neurology] on [February 25, 2008]” and that

L.C.H. would “[l]ikely require [a] repeat MRI at some point.” Id. Dr. Ohta noted on April

10, 2008 that L.C.H. attended the neurology appointment, and that it was a “normal exam”

and that there was “no urgent need for [a] repeat MRI.” Pls.’ Ex. 29, NNMC 1406. In the

same note, Dr. Ohta again found, and Dr. Mao again agreed, that L.C.H. had a normal

mental status, and that although L.C.H. “[s]uffered [a] stroke during . . . admission [to

CNMC], [he] appear[ed] to have no long term neuro[logic] sequelae.” Id. On June 5, Dr.

Ohta again observed that L.C.H. had a normal mental status. Pls.’ Ex. 30, NNMC 1411.

On July 25, 2008, L.C.H. was seen by developmental pediatrician Arne Anderson.

Pls.’ Stmt. ¶ 43. The purpose of the visit was to conduct a “neurodevelopmental assessment

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for [a] patient at risk for developmental delay.” Pls.’ Ex. 31, NNMC 1414. Dr. Anderson

noted that there was a “concern for hypoxemiac event and stroke,” and that L.C.H.’s

“[c]ognitive functioning was abnormal . . . .” Id. She also noted that “[o]verall [L.C.H.] has

made wonderful progress in the last few months [considering] how sick he has been during

the last few months. He will benefit from some intensive intervention to address concerns

regarding his asymmetry and vision. [O]verall his development is 7–8 months with scatter

to 9 months.” Id.

During a September 3, 2008 evaluation at CNMC, Dr. Torres found that L.C.H.’s

neurological exam was “grossly normal.” Pls.’ Ex. 32. The same finding was made by Dr.

Torres during examinations on October 8, October 29, November 19, and December 10,

2008. Pls.’ Exs. 34, 36–38.

On January 28, 2009, L.C.H. was again seen by Dr. Anderson. Pls.’ Stmt. ¶ 52.

During this examination, Dr. Anderson referred L.C.H. to the “[Pervasive] Developmental

Disorder Clinic for further evaluation and opinion regarding the possibility of an Autism

diagnosis.” Pls.’ Ex. 39, NNMC 1470. Subsequently, on February 20, 2009, a repeat MRI

was conducted at Walter Reed. Pls.’ Ex. 40. The examination report associated with the

MRI states the following under a section entitled “Reason for Order”:

21 month ex-25 week preemie (corrected age 18 months) with [history of]

hypotensive ischemic brain injury at 5 months with imaging at that time

showing edema of frontal, posterior temporal, occipital, parietal lobes and

corpus callosum and thalami. Current status – autistic features with social

and language delay but preserved gross and fine motor skill, vision and

hearing.

Pls.’ Ex. 40. Under “impression,” the examination report states that there are “[e]xtensive

areas of gliosis and encephalomalacia . . . .” Id.

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On March 2, 2009, L.C.H. was seen and evaluated at Walter Reed by Dr. Jason N.

Harris and Dr. Marleigh Erickson. Pls.’ Stmt. ¶ 54. At that time, L.C.H. was first diagnosed

with the condition of hypoxic ischemic encephalopathy. Id.; see Def.’s Resp. to Pls.’ Stmt.,

at 8 (no dispute as to this being the first such diagnosis). The note associated with the March

2 evaluation states the following:

HYPOXIC-ISCHEMIC ENCEPHALOPATHY: No e/o seizures per

history. Pt still w/ decreased social interactions, but pt to see developmental

peds. Pt’s motor skills are surprisingly well developed considering what one

might expect looking at MRI. No new lesions on MRI and imaging stable.

At this time, pt should continue to be followed by pediatrics, Gen Peds and

GI peds. No need for further neurologic follow up unless pt develops new

concerning symptoms such as spasticity or e/o seizures. Could consider

MRI at 4 years old to assess development of brain, but this is not mandatory.

Pls.’ Ex. 41, NNMC 1499-6.

Plaintiff Hagan filed an administrative complaint on behalf of L.C.H. with the

United States Department of the Navy on July 23, 2010, seeking compensation for the

medical malpractice claims that underlie this action. Pls.’ Stmt. ¶ 61 (citing Ex. 47).

II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient

on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id.

Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on

just any disagreement as to the relevant facts; the dispute must be “genuine,” meaning that

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there must be sufficient admissible evidence for a reasonable trier of fact to find for the

non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a)

cite to specific parts of the record—including deposition testimony, documentary evidence,

affidavits or declarations, or other competent evidence—in support of its position, or (b)

demonstrate that the materials relied upon by the opposing party do not actually establish

the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory

assertions offered without any factual basis in the record cannot create a genuine dispute

sufficient to survive summary judgment. See Ass’n of Flight Attendants-CWA, AFL-CIO v.

Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails

to properly support an assertion of fact or fails to properly address another party’s assertion

of fact,” the district court may “consider the fact undisputed for purposes of the motion.”

Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed

in the light most favorable to the non-movant, with all justifiable inferences drawn in its

favor. Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or

undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment

is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the

district court’s task is to determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52. In this regard, the non-

movant must “do more than simply show that there is some metaphysical doubt as to the

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material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). “If the evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50 (internal citations omitted).

With limited exceptions not relevant here, jury trials are not permitted under the

FTCA, meaning the Court will serve the role of factfinder in this case, in lieu of the jury.

28 U.S.C. § 2402.

III. DISCUSSION

The FTCA “waives the United States’s sovereign immunity from tort claims and,

subject to exceptions, renders the United States liable in tort as if it were a private person.”

Gross v. United States, 771 F.3d 10, 12 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1746

(2015). The Act further “provides that a tort claim against the United States ‘shall be

forever barred’ unless it is presented to the ‘appropriate Federal agency within two years

after such claim accrues’ and then brought to federal court ‘within six months’ after the

agency acts on the claim.” Kwai Fun Wong, 135 S. Ct. at 1629 (quoting 28 U.S.C.

§ 2401(b)). In Kwai Fun Wong, the Supreme Court clarified that these deadlines were not

jurisdictional. Id. Instead, as the Supreme Court explained, “[t]he time limits in the FTCA

are just time limits, nothing more.” Id. at 1633. An administrative claim was lodged on

behalf of L.C.H. on July 23, 2010, see supra at 8, meaning Plaintiffs’ claim can proceed if

it accrued on or after July 23, 2008.

The running of the FTCA’s statute of limitations is determined by a standard set

forth by the Supreme Court in United States v. Kubrick, 444 U.S. 111 (1979). Under the

Kubrick standard, a claim accrues under the FTCA “by the time a plaintiff has discovered

both his injury and its cause, even though he is unaware that the harm was negligently

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inflicted.” Sexton v. United States, 832 F.2d 629, 633 (D.C. Cir. 1987) (internal quotation

marks omitted; citing Kubrick, 444 U.S. at 120, 123). The Supreme Court, in “justifying

its approach . . . noted that Kubrick himself, ‘armed with the facts about the harm done to

him,’ could ‘protect himself by seeking advice in the medical and legal community’ to

determine whether there had been negligence.” Sexton, 832 F.2d at 633 (internal quotation

marks omitted). Consequently, the Supreme Court drew “a distinction between the facts

about what happened to the plaintiff, on the one hand, and the facts and standards by which

those events were to be evaluated, on the other.” Id.

Under Kubrick, the plaintiff has a duty to inquire; that is, the ultimate question is

whether the plaintiff knew, or with reasonable diligence should have known of, both the

injury and its cause. In re Swine Flu Immunization Prod. Liab. Litig., 880 F.2d 1439, 1443

(D.C. Cir. 1989) (“Because there is no evidence in the record to suggest that plaintiff did

not conduct her inquiry in a reasonable manner, we hold that her submission is sufficient

for a reasonable factfinder to conclude that she satisfied her duty to inquire.”); see also

Landreth By & Through Ore v. United States, 850 F.2d 532, 533 (9th Cir. 1988) (“In a

medical malpractice case under the FTCA, a claim accrues when the plaintiff discovers, or

in the exercise of reasonable diligence should have discovered, the injury and its cause.”).

“The point in time at which the plaintiff knew or should have known of an injury is a

question of fact . . . and the trial judge may make this determination as a matter of law only

if no reasonable person could disagree on the date . . . .” Kuwait Airways Corp. v. Am. Sec.

Bank, N.A., 890 F.2d 456, 463 n.11 (D.C. Cir. 1989).

The record presently before the Court is not sufficiently clear for either party to be

entitled to summary judgment on Defendant’s statute of limitations defense. In this case,

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the ultimate question is when Plaintiffs knew or should have known that L.C.H. suffered a

brain injury. Defendant’s position is encapsulated in the following passage from its motion

for summary judgment:

Certainly in September 2007, Plaintiffs knew that L.C.H. suffered a brain

injury. Even if they personally did not recognize the stroke as an injury, it

is of no moment. A reasonable person armed with the information that

L.C.H. was having seizures requiring medication; that because of the

seizures, multiple imaging studies were performed; that those imaging

studies showed that L.C.H. had suffered a stroke; discussed the severity of

the findings with L.C.H.’s doctor and neurology; and received

documentation stating that because of the stroke L.C.H. was at risk for

neuromotor dysfunction; would have the requisite knowledge that L.C.H.

suffered a brain injury.

Def.’s Mem. at 12. The record is not so clear, and there is a mass of factual information

supporting both Plaintiff’s and Defendant’s view of when it was reasonable for Plaintiffs

to have known of the brain injury.

At the very outset, the record evidence is equivocal on whether a stroke or a seizure

are themselves “injuries,” rather than the causes or symptoms of an underlying neurological

disorder, and whether a stroke occurred at all. See Pls.’ Ex. 25, Wiznitzer Depo., at 31

(“The seizures are a consequence of the brain injury.”); at 37 (“By definition, a stroke is .

. . damage to brain tissue within a vascular territory due to either an occlusion of the blood

vessel or to hemorrhage in that area, and his injury, therefore, was not technically a stroke.);

Pls.’ Ex. 48, Silver Rule 26 Disclosure, at 5 (referring to seizures and strokes as “neurologic

events”); see also Hagan, 2012 WL 6570685, at *2 (“What is critical here are the

neurologic consequences from these events, and when Hagan learned of them.”).

Furthermore, while several progress notes refer to “stroke syndrome,” prior to July 25,

2008, these all suggest an absence of any neurological consequences from the stroke. See

supra at 6. Consequently, while there is no dispute that both Plaintiffs were aware by

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September 12, 2007 that L.C.H. had suffered a stroke and several seizures, the pertinent

question is whether they were then aware, or reasonably should have been aware, that

L.C.H. had a brain injury.

For their part, Plaintiff Hagan testified that he was not informed of the

consequences of a stroke in September 2007, and Plaintiff Wilson does not recall what she

was told at that time. Pls.’ Ex. 14A, Hagan Depo., at 123; Def.’s Ex. C, Wilson Depo., at

87. Nonetheless, in one sense, the very occurrence of the stroke and seizures may be

sufficient for a factfinder to conclude that Plaintiffs knew or should have known that L.C.H.

had a brain injury. At very least, it may have been a sufficient impetus for Plaintiffs to

inquire into whether L.C.H. had a brain injury. Also on this side of the scale is Dr.

Corriveau’s notation on September 12, 2007 that Plaintiffs understood “the severity of

[L.C.H.’s] neurologic and intestinal injuries.” Supra at 4. In addition, it is uncontested that

the September 11, 2007 CT scan showed evidence of edema and hypodensity, and that a

September 17, 2007 MRI showed evidence of edema and stroke. Id. Then, on November

1, 2007, L.C.H. was discharged, and his discharge paperwork noted that he was “at risk of

neuromotor dysfunction.” Supra at 5.

All of these facts support the government’s position, but none are so clear as the

government would have them. First, as already noted, the connection between a stroke or

seizure on the one hand, and “brain injury” on the other, is contested. Second, while Dr.

Corriveau noted contemporaneously that Plaintiffs understood the severity of L.C.H.’s

“neurologic and intestinal injuries,” she has no independent recollection of the

conversation. Supra at 4. Consequently, there is no contemporaneous record evidence of

what was discussed. Plaintiffs, for their part, have represented that they were told on the

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same day by medical professionals that “only time will tell” what would happen to their

son. Supra at 5. A determination of what was actually said that day will inevitably require

a credibility determination between the testimony of Dr. Corriveau and Plaintiffs.

However, such a determination is inappropriate for the Court to make on a motion for

summary judgment. United States v. $17,900 in United States Currency, 859 F.3d 1085,

1091 (D.C. Cir. 2017) (on a motion for summary judgment, “the court may not make

credibility determinations or otherwise weigh the evidence” (internal quotation marks

omitted)). Also, while the November 1 discharge note says that Plaintiff was “at risk of

neuromotor dysfunction,” what to make of the “at risk” qualifier requires a weighing of the

evidence and surrounding testimony. Id. It may mean that L.C.H. had a brain injury and

was therefore likely to have a neuromotor dysfunction. However, it may also mean that

L.C.H. suffered a stroke and several seizures, and that these could eventually cause some

neuromotor dysfunction. Determining which of these interpretations is more likely requires

a weighing of the evidence, which is likewise inappropriate for summary judgment.

Admittedly, the facts relied upon by the government, in isolation, perhaps suggest

that Plaintiffs were on notice and reasonably should have discovered L.C.H.’s brain injury

in September 2007. But that is only one side of the equation. Plaintiffs have proffered

substantial factual evidence that treating physicians on numerous occasions concluded that

L.C.H.’s neurological condition was within the bounds of normalcy. For instance, on

November 21, 2007, shortly after L.C.H. was discharged from CNMC, Dr. Torres noted

that L.C.H. “had a rough postoperative stay . . . and some brain hemorrhage, but overcame

all of these problems.” Supra at 5. On December 13, 2007, Dr. Ohta, with agreement from

Dr. Mao, noted that upon examination, L.C.H. did “not appear to have neurological

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sequelae,” and that his mental status was normal. Supra at 6. They made nearly identical

determinations in January, February, April, and June 2008. Id. The April 2008 evaluation,

in particular, concluded that although L.C.H. suffered a stroke, he “appear[ed] to have no

long term neuro[logic] sequelae.” Id. Similarly, Dr. Torres determined in September,

October, November, and December 2008 that L.C.H.’s neurological exam was “grossly

normal.” Supra at 7.

Expert testimony supports Plaintiffs’ contention that L.C.H.’s brain injury was

“masked by normalcy” until at least July 25, 2008. Pls.’ Stmt. ¶ 55. The Rule 26(a)(2)(B)

disclosure statement of the defense expert Dr. Silver states that L.C.H.’s

development was found to be normal by multiple providers over a 16 month

period of time after admission. Acute stroke and brain injury symptoms

would most likely appear immediately. The late findings of developmental

delay and autism are most likely caused by his extreme prematurity and

extreme low birth weight.

Pls.’ Ex. 48 (emphasis added). The disclosure also states that “[f]ollow up with pediatric

Neurology, primary care physicians and physical therapists from discharge until early

2009, over one year and 4 months after volvulus repair note normal development, head

circumference, muscle tone, strength and posture, and mental status. Multiple references

to the finding of ‘no neurologic sequalae’ were made.” Id. During her testimony, Dr. Silver

agreed that, as of September 11, 2007, “the extent and severity of any adverse neurological

condition was yet unknown[.]” Pls.’ Ex. 47, at 27 (emphasis added).

Plaintiffs’ experts offered similar conclusions. Dr. Max Wiznitzer opined that

“[r]eaching a diagnosis of neurological dysfunction and permanent brain injury in a

premature child with reportedly normal neurological development, such as L.C.H., is a

process that can take a period of time that can be greater than 1 year.” Pls.’ Ex. 50, at 6.

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Dr. Wiznitzer also testified that given L.C.H.’s prematurity, it would have only been “in

very late 2008 or early 2009, [that] people would have started recognizing that there[ was]

something different about [L.C.H.]” Pls.’ Ex. 19, at 62. Another of Plaintiffs’ experts, Dr.

Michael Johnston, opined that:

L.C.H.’s mental and cognitive functions were masked by normalcy until at

least July 25, 2008, up to which time L.C.H.’s attending pediatricians

concluded reasonably that he had a full recovery from his stroke . . . . After

this type of brain injury in an older child, it is common to have motoric

deficits, paralysis and spasticity. However in a 5 month old baby born

prematurely, these clinical signs are often not apparent. L.C.H. had none of

these common findings, and the measureable expression of his mental and

cognitive functions was limited to early infancy abilities which therefore

did not disclose his underlying serious brain injuries and stroke-related

disabilities.

Pls.’ Ex. 42. This is not to say that Plaintiffs’ side of the equation is so laden with favorable

factual matter that summary judgment is warranted in their favor. There is the pro-

government evidence already described above, which to some degree suggests that

Plaintiffs were told of “neurological injuries” in September 2007. Furthermore, while the

diagnosis of hypoxic ischemic encephalopathy was initially made in March 2009, the note

associated with that diagnosis states that “[n]o new lesions” were apparent on the repeat

MRI, and that “imaging [was] stable.” Supra at 8 (citing Pls.’ Ex. 41). This suggests that

the neurological injury was present all along. Consequently, there is substantial factual

matter on both sides of equation, and summary judgment is not the appropriate mechanism

by which to decide which party the evidence ultimately favors on the question of when

Plaintiffs were or should have been aware of the brain injury for which relief is sought.

Courts faced with similar factual circumstances have held to the same effect. In

Swine Flu, the D.C. Circuit held that dismissal on the basis of the FTCA’s statute of

limitations was not appropriate as a matter of law because the record indicated that “the

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relatively mild symptoms experienced by plaintiff shortly after inoculation—vomiting and

body aches—went away, and that the more serious but sporadic and varied symptoms that

plagued her (and befuddled her doctors) in the years that followed were of quite a different

nature.” Swine Flu, 880 F.2d at 1443. In Winter, the United States Court of Appeals for the

Ninth Circuit noted that “it has held that a cause of action does not accrue under the FTCA

when a plaintiff has relied on statements of medical professionals with respect to his or her

injuries and their probable causes.” Winter v. United States, 244 F.3d 1088, 1090 (9th Cir.

2001). One example was Raddatz v. United States, in which an Army doctor perforated the

plaintiff’s uterus while attempting to insert an IUD, and the plaintiff subsequently

complained of “severe pain, discomfort, and cramps.” 750 F.2d 791, 793 (9th Cir. 1984).

During subsequent consultations with Navy physicians, the plaintiff was told that her

symptoms were normal side effects. Id. The Ninth Circuit reversed summary judgment

against the plaintiff with respect to the Navy, observing that when the plaintiff “tried to

find out why her condition was getting worse, the Navy doctor repeatedly assured her that

her condition was a normal consequence of the perforated uterus.” Id. at 796. The court

held that “[s]uch assurances may be reasonably relied on by a patient,” and that the

plaintiff’s claim accrued with respect to the Navy only when she was finally told by “her

private physician . . . that her perforated uterus had developed an infection.” Id.

The government heavily relies on T.L. ex rel. Ingram v. United States, 443 F.3d 956

(8th Cir. 2006), which was cited favorably by Judge Robert L. Wilkins in dismissing this

case for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1). See Hagan, 2012 WL 6570685, at *6. Given the more fully developed factual

record, Ingram is now readily distinguishable from this case. There, the plaintiff was

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informed shortly after delivery that her child had a “severe, permanent brain injury and a

poor prognosis.” Ingram, 443 F.3d at 962 (internal quotation marks and alteration omitted).

On that basis, the United States Court of Appeals for the Eighth Circuit held that the

plaintiff was on notice of her child’s brain injury, even if a diagnosis of cerebral palsy, for

which she sued, came substantially later. Id. According to the court, “Ingram had a duty

under the law to seek advice about possible legal action at the time she knew of T.L.’s brain

injury, not only after the full effects of the brain damage were manifested.” Id. at 962–63.

Here, however, the question is whether Plaintiffs were aware, or should have been

aware, that L.C.H. had any brain injury—it is not one of extent. The record evidence is that

Plaintiffs were informed that their son had suffered a stroke and several seizures in

September 2007. Whether a stroke and seizures are themselves brain injuries are disputed

factual issues. Furthermore, around the same time, there is some suggestion that the parents

were informed of a neurological injury, but the parents’ testimony is that the diagnosis was

far more equivocal. They themselves testified that they were unaware of or do not recall

being told the neurological consequences of a stroke. Then, following L.C.H.’s discharge

in November 2007, treating physicians repeatedly concluded that his neurological

condition was within the bounds of normalcy. Given the factual circumstances of this case,

the Court cannot presently conclude whether or not Plaintiffs were or should have been

aware that L.C.H. had a brain injury. To hold for the government here would be to disregard

the substantial evidence that L.C.H.’s treating physicians themselves failed to diagnose

L.C.H. with a brain injury until long after September 2007. It would also make for bad

policy, requiring patients to sue even when competent medical advisors tell them that there

is no injury. See E.Y. ex rel. Wallace v. United States, 758 F.3d 861, 867 (7th Cir. 2014)

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(“In applying the FTCA statute of limitations to claims of medical malpractice, we have

long avoided requiring would-be plaintiffs to engage in paranoid investigations of everyone

who has ever provided them with medical care.”). More practically, a factfinder might very

well determine that a reasonable person, when told by physicians that their son did not have

a neurological disorder, would conclude that a stroke and several seizures did not result in

a brain injury. On the other hand, the factfinder might conclude that the stroke and seizures

were sufficient to put the parents on notice. Deciding between these two conclusions in this

case will inevitably require a weighing of the evidence, and the making of credibility

determinations between competing witness testimony. Accordingly, summary judgment on

the statute of limitations issue is not appropriate. 3

IV. CONCLUSION AND ORDER

For the foregoing reasons, Plaintiffs’ [50] Motion for Partial Summary Judgment

is DENIED, and Defendant’s [51] Motion for Summary Judgment is DENIED.

/s/

COLLEEN KOLLAR-KOTELLY

United States District Judge

3

Plaintiff Wilson contends that the statute of limitations issue does not apply to her claims

because the statute was tolled for her by the Servicemembers Civil Relief Act, 50 U.S.C.

App. § 526(a). Defendant does not contest this legal assertion. However, Plaintiff Wilson

has not pointed to any record evidence that she was “on active duty with the United States

Air Force between August 15, 2007 and September 1, 2012 . . . .” Pls.’ Reply at 2.

Accordingly, summary judgment in favor of Plaintiff Wilson is not appropriate on this

issue, and summary judgment against her is inappropriate for the independent reasons

detailed above.

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