Little v. VA Doctors Balt MD
1:12-cv-02173
D. MarylandJan 8, 2013Background
- Plaintiff Daniel L. Little, pro se, sues the United States for medical malpractice in the District of Maryland.
- On December 21, 2009, Little underwent spinal surgery at the VAMC Baltimore; he alleged his full upper denture, which needed removal, was not removed and became lodged in his throat.
- Little filed an administrative claim under the FTCA on June 22, 2010; the VA denied the claim with a letter dated October 20, 2011.
- The denial advised that, if dissatisfied, Little could file a request for reconsideration or sue within six months of the mailing date.
- Little filed a request for reconsideration on June 21, 2012 (eight months after the denial), which the VA denied as untimely on July 3, 2012; Little filed suit on July 23, 2012.
- The court held the FTCA claim barred by sovereign immunity because the administrative remedies were not timely pursued and the suit was foreclosed by 28 U.S.C. § 2401(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FTCA timely presentment and timely filing requirements bar the suit. | Little argues timely administrative filing and proper reconsideration would allow suit. | United States contends claim was not timely pursued under § 2401(b). | Sovereign immunity bars the suit due to untimely action under § 2401(b). |
| Whether filing a late request for reconsideration defeats the waiver of immunity. | Late reconsideration should not foreclose a possible waiver if merits exist. | Late reconsideration is ineffective; the claim remains time-barred. | Late reconsideration did not save the claim; the action remains barred. |
| Whether the Forma Pauperis status affects the FTCA's timeliness analysis. | IFP status should not affect the timeliness defense. | IFP status does not waive timing requirements under FTCA. | IFP status does not alter the timeliness bar under § 2401(b). |
Key Cases Cited
- Lehman v. Nakshian, 453 U.S. 156 (1981) (sovereign immunity waivers strictly construed; must observe conditions)
- Gibbs v. United States, 34 F. Supp. 2d 405 (S.D. W. Va. 1999) (dismissal for lack of subject matter jurisdiction when filing beyond § 2401(b) period)