Francis v. United States
Francis v. United States
Opinion of the Court
DECISION AND ORDER ON MOTION TO DISMISS
This is a medical malpractice case. The care provider in question is Pleasant Point Health Center (PPHC). PPHC is a tribally operated (Passamaquoddy tribe) facility under Title I of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-458ddd-2. As a result, the malpractice claim lies against the United States and is governed by the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1). A two-year statute of limitation governs such claims. Id. § 2401(b). It is undisputed that the plaintiff here made her claim against the United States outside the two-year window. She claims that equitable estoppel or equitable tolling should nevertheless allow her to proceed. I conclude that under First Circuit precedents, these judicial doctrines do not apply. I therefore Grant the government’s motion to dismiss.
Facts
I take the facts as stated in the complaint and the parties’ affidavits. The plaintiff received health care from PPHC, Calais Regional Hospital, and Eastern Maine Medical Center (EMMC). PPHC was her primary care provider. While the plaintiff was at EMMC, EMMC ordered tests for possible porphyria on January 21, 2011. The results were not yet available when EMMC discharged her on January 25, 2011, but EMMC did notify PPHC that the tests were pending. PPHC continued to treat the plaintiff without seeking the. outcome of the tests (they were positive for porphyria) and eventually the plaintiff underwent surgical removal of her uterus,
Analysis
Equitable estoppel and equitable tolling are closely related. See Ramirez-Carlo v. United States, 496 F.3d 41 (1st Cir. 2007). I treat them separately because the lawyers here have done so. But the discussion in one clearly overlaps the discussion in the other.
Equitable Estoppel
Equitable estoppel is available under the FTCA. Ramirez-Carlo, 496 F.3d at 49. It requires proof of an affirmative representation or affirmative concealment of a material fact by a defendant, and proof that the plaintiff reasonably relied on the misrepresentation to her detriment. Id. The plaintiffs argument here is that in responding to her lawyers’ early requests for medical records about the plaintiff within the limitations period, PPHC’s failure to forward the documents that PPHC had received from EMMC was an affirmative concealment.
Equitable Tolling
Equitable tolling is also available under First Circuit precedents. See Sanchez v. United States, 740 F.3d 47, 54 (1st Cir. 2014). But “due diligence is a sine qua non for equitable tolling.” Id. at 55 (quoting Donahue v. United States, 634 F.3d 615, 629 (1st Cir. 2011)).
On the topic of due diligence in failing to make her claim against PPHC/ the United States until August 2013, the plaintiff says that “[i]n reliance on the documents received from PPHC, Francis’ attorneys concluded that PPHC had not been notified of her pending tests at the time of her discharge from EMMC on January 25, 2011.” Pl.’s Opp’n at 4. It is undisputed that the EMMC records that the plaintiff received from EMMC on October 16, 2012, included one that showed that EMMC had requested the porphyria tests in January 2011. Id. at 3. The plaintiff says that “[tjhough [that document] contains a notation regarding a copy to PPHC, the document to which this notation refers is not clear.” Id. at 12. I fail to discern the ambiguity. At the end of the document, it says “Copy sent to patient’s primary care provider.” EJDis-charge Order at 3 (ECF No. 16-3). That is a clear indication that PPHC was on notice of the pending tests.
So even though the PPHC records the plaintiff received at first did not include the notification of pending tests for por-phyria, the plaintiff or her lawyers had the basis, at least as of October 2012, for asserting their claim against PPHC within the two-year limitations period.
I am not happy with PPHC’s insufficient records disclosure at the outset. If there were any hint that it was a strategic attempt to avoid liability, the outcome would be different.
The motion to dismiss is Granted.
So Ordered.
. "By withholding certain documents in response to Plaintiff's request for complete records, PPHC made an affirmative misrepresentation regarding the contents of its files.” PL's Opp'n to Def.'s Mot. to Dismiss at 8 (ECF No. 14).
. The lawyer's letter of October 31, 2013, seeking reconsideration of the federal administrative rejection of the FTCA claim, states:
My office initially requested Ms. Francis' records from Pleasant Point Health Care on September 12, 2012. These requests were renewed on October 1, 2012, and October 16, 2012. We received a portion of Ms. Francis' records on October 26, 2012. On April 3, 2013, April 26, 2013, May 8, 2013, May 15, 2013, and May 24, 2013, my office requested additional records from Pleasant Point Health Care. We received additional records on May 30, 2013.
Pl.’s Letter to Dep’t of Health and Human Servs. Office of Gen. Counsel dated Oct. 31, 2013 at 2 (ECF No. 16-7).
. I also observe that the plaintiff agrees that a different document did clearly show a copy going to PPHC. PL's Opp’n at 4; Aff. of Craig Bramley ¶ 9 (referring to the discharge summary). Since PPHC initially provided the plaintiff no documents that it had received from EMMC, Bramley Aff. ¶ 11, including the discharge summary, this omission too should have put the plaintiff's lawyers on notice that the file was incomplete.
. I have added the word ''not” because that is what the lawyer's supporting affidavit says. The omission of the negative in the memo is obviously a scrivener’s error.
. The plaintiff has not made any claim of fraudulent concealment. That doctrine requires that
First, the defendant raising the limitations defense must have engaged in fraud or deliberate concealment of material facts related to the wrongdoing. Second, the plaintiff must have failed to discover these facts within the normal limitations period despite his or her exercise of due diligence.
Gonzalez v. United States, 284 F.3d 281, 292 (1st Cir. 2002).
Reference
- Full Case Name
- Dina A. FRANCIS v. United States
- Status
- Published