166 F. Supp. 3d 215
D. Conn.2016Background
- Patrick Freeman was treated at the VA hospital (2007–2011) and alleges DVA personnel prescribed an excessive dose (80 mg) of simvastatin, causing chronic myopathy and other disabling symptoms; his wife Margaret claims loss of consortium.
- Mr. Freeman filed an SF-95 administrative claim in December 2011; it was denied and reconsideration was denied (final denial dated July 25, 2012).
- Mr. Freeman submitted a second SF-95 in October 2013 (rejected as duplicative); Mrs. Freeman submitted an SF-95 in October 2013 (denied and reconsideration denied October 24, 2014).
- Plaintiffs sued in federal court on April 23, 2015 under the FTCA (First Count: negligence/medical malpractice; Second Count: derivative loss of consortium).
- Defendants moved to dismiss under Rule 12(b)(5) (insufficient service / failure to comply with Connecticut’s good-faith certificate requirement for medical malpractice claims) and Rule 12(b)(6) (FTCA six‑month filing bar after administrative denial).
- Court found (1) the First Count alleges medical malpractice triggering Conn. Gen. Stat. §52-190a’s pre-suit good-faith certificate requirement, which plaintiffs failed to file within the applicable period, and (2) Mr. Freeman’s second SF-95 was duplicative so the FTCA six‑month limitations period ran from the July 25, 2012 final denial; suit was untimely. The derivative consortium claim was dismissed as well.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether First Count is medical malpractice requiring Connecticut good-faith certificate | Freeman labels claim "negligence" and seeks leave to file certificate late | Counts allege misdiagnosis and improper prescribing—medical acts subject to §52-190a | Court: Claim is medical malpractice; certificate required and none was filed |
| Whether court should extend time to file good-faith certificate under Rule 4(m) | Plaintiffs cite late receipt of medical records and VA conduct preventing early expert retention | No good cause shown; plaintiffs never sought timely extension | Court: No good cause; declines discretionary extension |
| Whether second SF-95 restarts FTCA six-month limitations period | Plaintiff attempted a second claim (Oct 2013) after first denial | Second SF-95 is duplicative and cannot restart the six-month clock from the first final denial | Court: Second claim duplicative; six-month window ran from July 25, 2012 and claim is time-barred |
| Viability of derivative loss-of-consortium claim | Mrs. Freeman asserts derivative claim based on husband's claim | Defendant: Consortium depends on viability of primary claim | Court: Dismissed as derivative of Mr. Freeman's dismissed claim |
Key Cases Cited
- Monsky v. Moraghan, 127 F.3d 243 (2d Cir. 1997) (standard: accept complaint allegations as true for sufficiency testing)
- Dickerson v. Napolitano, 604 F.3d 732 (2d Cir. 2010) (plaintiff bears burden to prove adequate service under Rule 12(b)(5))
- Burda Media, Inc. v. Viertel, 417 F.3d 292 (2d Cir. 2005) (service burden principles)
- Scheuer v. Rhodes, 416 U.S. 232 (U.S. 1974) (pleading standard to accept allegations on motion to dismiss)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (complaints must contain factual enhancement beyond conclusions)
- FDIC v. Meyer, 510 U.S. 471 (U.S. 1994) (FTCA substantive liability derives from state law)
- Liranzo v. United States, 690 F.3d 78 (2d Cir. 2012) (consult state law under FTCA)
- Gold v. Greenwich Hosp. Ass'n., 262 Conn. 248 (Conn. 2002) (three-part test to classify negligence as medical malpractice)
- Morgan v. Hartford Hosp., 301 Conn. 388 (Conn. 2011) (purpose of §52-190a good-faith certificate to evidence precomplaint inquiry)
- Roman-Cancel v. United States, 613 F.3d 37 (1st Cir. 2010) (FTCA: second duplicative administrative claim cannot restart six-month limitations period)
- Willis v. United States, 719 F.2d 608 (2d Cir. 1983) (six-month statutory bar cannot be avoided by refiling)
- Zapata v. City of New York, 502 F.3d 192 (2d Cir. 2007) (affirming dismissal where plaintiff showed no good cause and offered no colorable excuse)
- Bogle-Assegai v. Connecticut, 470 F.3d 498 (2d Cir. 2006) (affirming dismissal under Rule 4(m) where plaintiff neither sought nor received extension)