Morales-Melecio v. United StatesMorales-Melecio v. United States
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. Senior District Judge]
José F. Velázquez-Ortiz and Velázquez Law Offices, PSC on brief for appellants.
John A. Mathews II, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
I.
On March 1, 2010, Emilio Matos-Martínez (“Matos“) died at the Puerto Rico Medical Center (“PRMC“) after having been diagnosed with septic shock and multiple organ failure, and suffering two cardiorespiratory attacks. Prior to his death at PRMC, Matos was treated at two other medical facilities on February 27 and February 28, 2010. At some point after Matos‘s death, Matos‘s parents, sister, and daughter (collectively, “Appellants“) became aware that the first medical facility at which Matos was treated was a federally supported entity. Appellants filed an administrative claim with the United States Department of Health and Human Services (“USDHHS” or the “government“) on April 16, 2012, followed by a medical malpractice complaint pursuant to the FTCA against USDHHS in the district court on April 22, 2013. The district court granted summary judgment in favor of the government, holding that Appellants’ claims were time-barred for failing to file compulsory administrative claims within the FTCA‘s two-year statute of limitations. See
Appellants now appeal the dismissal of their complaint, arguing that their FTCA claims did not begin to accrue until they received Matos‘s autopsy report on July 28, 2010. After careful review of the record, we agree with the district court that Appellants’ claims are time-barred. We therefore affirm.
The facts are largely undisputed.1 On February 27, 2010, at 4:55 p.m., Matos, a thirty-six year old man weighing 370 pounds2 with a history of hypertension, arrived at Salud Integral en la Montaña, Inc. (“SIM“), a health center located in Naranjito, Puerto Rico, complaining of abdominal pain that had persisted for five days, constipation, and fever. SIM is a covered entity under the Federally Supported Health Centers Assistance Act of 1995, Pub. L. 104-73, 109 Stat. 777 (codified at
doctor. After the duty physician, Dr. María Román-Bruno (“Dr. Román“), conducted a cursory examination of Matos that did not involve x-rays, laboratory tests, or other imaging, she diagnosed Matos with “abdominal pain” and prescribed him Maalox and Enulose for his constipation,3 and Bentyl for his abdominal pain.4 Dr. Román then discharged Matos and instructed him to see his primary doctor in two days.
The next day, Matos‘s sister, Mariela Matos, took Matos to the Hospital Universitario Ramón Ruiz-Arnau (“HURRA“), a regional hospital in Bayamón, because his symptoms had worsened overnight. Upon arrival, Matos was diagnosed with abdominal pain, dehydration, and hematuria.5 Medical tests revealed that Matos had a bowel obstruction, which prompted the emergency room physician to request a surgical evaluation. However, the head of HURRA‘s surgery department, Dr. Ricardo Rosario (“Dr. Rosario“), refused to evaluate Matos because he believed that the surgical tables at the hospital would not support Matos‘s weight.6 Due to
HURRA‘s inability to properly evaluate Matos, the staff at HURRA attempted to transfer Matos to another medical facility but was unable to do so until the next day.
On March 1, 2010, Matos was transferred to the PRMC where he was diagnosed with septic shock and multiple organ failure. Shortly thereafter, Matos suffered two consecutive cardiac arrests and, at 4:15 p.m., was declared dead. Immediately after Matos‘s death, a PRMC physician appears to have informed his father, Emilio Matos-Pérez, that Matos died of a heart attack. That same day, Matos‘s mother, María Martínez-Ortiz (“Martínez“), authorized PRMC to perform an autopsy of Matos‘s body. The autopsy was performed on March 2, 2010.
On March 6, 2010, Matos‘s body was cremated. Two days later, Martínez was given Matos‘s ashes along with a copy of his death certificate. The death certificate
rather than listing “intestinal perforation,” the autopsy report went into further detail about Matos‘s torn intestine, listing “diverticulitis, perforated with peritonitis with abscess formation.” The narrative section of the autopsy report labeled “Laboratory Findings” reads that “[a]n intestinal perforation in the Colon at 192 cm from the ileo-cecal valve (distal portion) measuring 0.5 cm corresponded to a diverticuli (Sigmoid Colon).” At an unidentified time after obtaining possession of the medical file, Appellants hired an attorney to explore their legal options.
On March 16, 2011, Appellants filed a medical malpractice suit in the Puerto Rico Court of First Instance against SIM, HURRA, and several physicians, alleging the wrongful death of Matos. On June 30, 2011, Appellants voluntarily dismissed their state court lawsuit. At some point thereafter, Appellants became aware that SIM was a federally covered entity and, on April 16, 2012, they filed an administrative claim with the USDHHS.8 While that administrative claim was still pending, on April 22, 2013, Appellants filed this FTCA medical malpractice claim against the USDHHS, as the representative of SIM and Dr. Román (as SIM‘s
Each diagnosis is further detailed in the autopsy report.
agent), seeking compensatory damages for their own suffering as a result of Matos‘s death. In the same complaint, Matos‘s minor daughter, Z.M.M., as heir of her deceased father, also asserted an inherited action for Matos‘s pain and suffering before his death as a result of the alleged medical malpractice.9 The government brought a third-party complaint against HURRA and several physicians that cared for or evaluated Matos in the events leading up to his death, seeking to add them as additional parties to the lawsuit. On May 3, 2013, the USDHHS denied the administrative claims against SIM.
After discovery was complete in the district court, Appellants filed a motion for partial summary judgment on November 27, 2015, claiming there was no factual dispute as to the negligence of the government‘s agent. On November 30, 2015, the government filed its own motion for summary judgment, positing
that the Appellants’ claims were barred by their failure to file an administrative claim within two
The district court agreed with the government, holding that by March 1, 2010, Appellants had sufficient knowledge as to the probable cause of Matos‘s death such that the statute of limitations began to run that same day. As Appellants had not filed their administrative claims until April 16, 2012,10 the district court dismissed Appellants’ claims with prejudice on June 6, 2016. Appellants filed a motion to reconsider on June 10,
2016, which the district court denied on August 3, 2016. Appellants timely appealed.
III.
It is axiomatic that, absent an explicit waiver, the United States is safeguarded from suit in any court in accordance with its sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA constitutes a limited waiver of that sovereign immunity, allowing, in relevant part, for damages claims to be brought against the United States for any “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”
we should not take it upon ourselves to extend the waiver beyond that which Congress intended,” United States v. Kubrick, 444 U.S. 111, 117-18 (1979), nor “should we assume the authority to narrow the waiver,” id. (citing Indian Towing Co. v. United States, 350 U.S. 61, 68-69 (1955)).
This Court had long interpreted the timely filing of an administrative claim pursuant to
this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title [requiring that an administrative claim be first filed], such claim shall be deemed to be timely presented under section 2401(b) of this title if —
(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and
(B) the claim is presented to the Federal agency within 60 days after the dismissal of the civil action.
Id.
v. United States, 284 F.3d 281, 288 (1st Cir. 2002); Attallah v. United States, 955 F.2d 776, 779 (1st Cir. 1992); González-Bernal v. United States, 907 F.2d 246, 248 (1st Cir. 1990). However, in 2015, the Supreme Court clarified that the FTCA‘s statute of limitations is nonjurisdictional. United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015). Given the nonjurisdictional nature of
section of its answer to Appellants’ complaint filed on February 3, 2014, and again in its motion for summary judgment.
Ultimately, the district court resolved the dispute on summary judgment. We take this opportunity to note that, post-Kwai Fun Wong, motions to dismiss based on the FTCA‘s statute of limitations should now be brought under
As the district court properly analyzed this claim utilizing the appropriate summary judgment test, “[w]e review the district court‘s decision to grant defendant‘s motion for summary
judgment on statute of limitations grounds de novo, construing the record in the light most favorable to the non-moving party.” Rodríguez v. Suzuki Motor Corp., 570 F.3d 402, 405-6 (1st Cir. 2009) (citation omitted). The district
IV.
In general, a tort claim under the FTCA accrues when a plaintiff is injured. Ramírez-Carlo v. United States, 496 F.3d 41, 46 (1st Cir. 2007). Both parties agree that the date of injury in question, Matos‘s death, was March 1, 2010. But, under the Supreme Court‘s “discovery rule” exception for FTCA claims, the statute of limitations clock does not begin to run until the putative plaintiff knows of the factual basis of both his injury and its cause. Kubrick, 444 U.S. at 119-22; see also Nicolazzo v. United States, 786 F.2d 454, 455 (1st Cir. 1986). The Court explained that two major concerns necessitated this rule:
One is the fact that ... since many of the consequences of medical malpractice often do not become apparent for a period longer than that of the statute [of limitations], the injured plaintiff is left without a remedy. The second reason is that the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely upon what he is told by the physician or surgeon.
Kubrick, 444 U.S. at 120 n.7 (quoting Restatement (Second) of Torts § 899 cmt. e (1979)). Once aware of the probable cause and existence of the injury, that putative medical malpractice plaintiff bears the burden of seeking further advice from the medical and legal communities to decide whether he has a viable cause of action. See Ramírez-Carlo, 496 F.3d at 47 (citing Callahan v. United States, 426 F.3d 444, 451 (1st Cir. 2005)); see also Sánchez v. United States, 740 F.3d 47, 52 (1st Cir. 2014); Skwira, 344 F.3d at 76. “Knowing the cause and existence of an injury is not the same as knowing that a legal right has been violated.” Motley v. United States, 295 F.3d 820, 822 (8th Cir. 2002).
V.
Appellants contend that their claims did not accrue until July 28, 2010, the date that they received the autopsy report. Unlike the death certificate, they assert that the autopsy report revealed that the “most significant” cause of Matos‘s death was diverticulitis, which a reasonable person could not have known
on the day that he died. Therefore, Appellants allege that they “became aware that the patient‘s death was possibly caused by mistreatment of his condition ... only after the issuance on July 28, 2010[,] of the PRMC medical records with the autopsy report that revealed [Matos‘s] diverticulitis disease.” Thus, the clock to file their FTCA claims should not have expired until July 28, 2012, rendering timely their administrative claims filed on April 16, 2012. Further, Appellants assert that PRMC‘s “extreme delay” in providing the autopsy report precluded them from learning the factual basis to assert their causes of action any earlier, and that, prior to receiving it, no one could have anticipated any litigation resulting from Matos‘s death. We disagree.
The court employs an objective standard to determine whether a plaintiff knew of sufficient facts for his action to accrue, contemplating “whether a reasonable
940 n.10 (1st Cir. 1984)), “or that it was negligently inflicted,” id. (citing Kubrick, 444 U.S. at 124), in order for the statute of limitations to begin to run. Further, “definitive knowledge of the cause of injury is not required to trigger the accrual of a medical malpractice claim.” Skwira, 344 F.3d at 78 (citing Kubrick, 444 U.S. at 118); see also Callahan, 426 F.3d at 451. A plaintiff need only be aware of his injury and the facts establishing the probable cause of the injury for the claim to accrue. See Kubrick, 444 U.S. at 118; see also González, 284 F.3d at 289. While knowing the factual basis of the cause of action includes knowing “the identity of the part[y] that caused the injury,” McIntyre, 367 F.3d at 52, “knowledge of the legal status of the physician as a federal employee is not required for claim accrual,” Skwira, 344 F.3d at 76.
Applying these principles, we find that, at least by March 8, 2010, when Appellants received Matos‘s death certificate, they knew of sufficient facts to raise an alarm in a reasonable person that the probable cause of Matos‘s death was connected to the defendants’ treatment (or failure to provide treatment) of Matos‘s medical condition. Upon receipt of Matos‘s death certificate, Appellants were aware that Matos had experienced five days of abdominal pain, constipation, and fever by the time that he arrived at SIM on February 27, 2010; that a nurse at SIM deemed
his condition to be “urgent“; and that Dr. Román simply diagnosed him with “abdominal pain” and prescribed him a laxative, an antacid, and a pain reliever without ordering any laboratory tests or x-rays. Appellants were also aware that after Dr. Román discharged Matos, his condition worsened overnight, prompting his family to take him to HURRA, where medical tests revealed a bowel obstruction that required a surgical evaluation. Additionally, Appellants knew that after HURRA transferred Matos to PRMC on March 1, 2010, less than two days after SIM discharged him, Matos was diagnosed with septic shock, multiple organ failure, and suffered two consecutive cardiac arrests ultimately resulting in his death. Finally, upon receiving the death certificate on March 8, 2010, Appellants were aware of Matos‘s direct, medical cause of death: septic shock, caused by peritonitis, which itself was caused by a perforated intestine. The knowledge of these vital facts was more than sufficient to trigger Appellants’ burden to inquire amongst the relevant medical and legal communities as to whether there was a causal connection between SIM‘s lack of treatment and Matos‘s death, and whether Appellants had a viable cause of action. See Kubrick, 444 U.S. at 124; González, 284 F.3d at 290.
The essence of Appellants’ argument is that they could not have known that the defendants may have committed malpractice by missing Matos‘s diverticulitis until they received the autopsy
report. But, as Appellants themselves acknowledge in their opening brief, the “FTCA two year limitation period allows a plaintiff to investigate, [and to] confer [with] medical professionals for the purpose of assessing whether there has been negligence and decide whether to sue.” (emphasis added).
limitations period then running whether the inadequacy was malpractice.“).
Appellants further contend that, in light of Matos‘s morbid obesity and hypertension, it was unreasonable for the district court to require them to know the cause of Matos‘s death before they received the autopsy report. Appellants state that, unlike in Sánchez, in which the court found that “[t]he death of a generally healthy woman in childbirth is sufficiently rare in this country today as to make most reasonable people ask why it happened,” 740 F.3d at 52, a reasonable person would not have questioned why an unhealthy person, such as Matos, died, especially given the frequency with which hospitalized patients die of sepsis.12 It was only when they learned that Matos suffered from diverticulitis, uncommon in a man of his age,13 that Appellants believe a reasonable person would have questioned whether malpractice occurred.
This argument, however, ignores the full scope of the information provided in Matos‘s death certificate, as well as the timing of Matos‘s death. The death certificate provided to Appellants on March 8, 2010, listed not only that Matos died of sepsis, but that the sepsis was secondary to peritonitis, which was secondary to intestinal perforation. Even if we were to assume that knowledge that Matos died of septic shock, without more, was insufficient to trigger Appellants’ duty to investigate, in this case they were armed with far more to raise their suspicions. They knew the symptoms that Matos suffered (severe abdominal pain, constipation, and fever), the treatment given (or, more precisely, not given), and the direct, medical cause of death (septic shock, secondary to peritonitis, secondary to intestinal perforation). Appellants also knew that this resulted in Matos‘s death only two days after Dr. Román diagnosed him with “abdominal pain” and discharged him within approximately two hours and forty minutes of his arrival at SIM. Appellants had sufficient
under the FTCA” within the two-year statute of limitations ending, at the latest, on March 8, 2012. Skwira, 344 F.3d at 81.
VI.
Despite the tragic death of their loved one, we unfortunately must conclude — like the district court before us — that Appellants’ action seeking compensatory damages for the allegedly negligent act of a federal employee is time-barred under the FTCA‘s statute of limitations.
Affirmed.
Notes
Whenever an action or proceeding in which the United States is substituted as the party defendant under