UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Heather Rodger, et al.

v. Civil No. 16-cv-468-AJ Opinion No.

United States of America

O R D E R

The plaintiffs, Heather and Adam Rodger, bring this two-

count medical malpractice claim against the United States of

America (the “Government”) under the Federal Tort Claims Act

(“FTCA”),

(b); 2671 et seq. See Compl. (doc.

no. 1). In Count I, Heather Rodger alleges medical negligence

on the part of Ammonoosuc Community Health Services, Inc.

(“Ammonoosuc”).1 In Count II, Adam Rodger seeks to recover for

loss of consortium. The Government moves to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6), arguing that the

plaintiffs’ action is barred by the FTCA’s two-year limitations

period. (Doc. no 7.) The plaintiffs object. (Doc. no. 9.)

For the following reasons, the Government’s motion is denied.

1 It is undisputed that Ammonoosuc is a Federally Supported Health Center Program under section 330 of the Public Health Services Act,

(b), and thereby a covered entity under the FTCA. Standard of Review

The parties dispute the applicable standard of review. The

Government moves to dismiss under Rule 12(b)(6). In their

objection, the plaintiffs have provided certain affidavits that

they contend the court should consider, and accordingly request

that the court convert the Government’s motion to one for

summary judgment. In response, the Government argues that the

court need not consider anything outside of the complaint in

order to determine that dismissal is appropriate here as a

matter of law.

The scope of the court’s analysis on a Rule 12(b)(6) motion

is generally limited to “facts and documents that are part of or

incorporated into the complaint . . . .” GE Mobile Water, Inc.

v. Red Desert Reclamation, LLC,

(D.N.H.

2014) (quoting Rivera v. Centro Medico de Turabo, Inc.,

(1st Cir. 2009)); see also Fed. R. Civ. P. 12(d).

The First Circuit has recognized a limited exception to this

general rule for certain categories of documents, see GE Mobile

Water, Inc.,

, but there is no question here

that the affidavits submitted by the plaintiffs do not fall

within one or more of these categories.

Outside of this exception, “any consideration of documents

not attached to the complaint, or not expressly incorporated

2 therein, is forbidden, unless the proceeding is properly

converted into one for summary judgment under [Rule] 56.”

Cooperativa de Ahorro y Credito Aguada v. Kidder, Peabody & Co.,

(1st Cir. 1993) (internal quotation marks

omitted) (citation omitted); see also Fed. R. Civ. P. 12(d)

(“If, on a motion under Rule 12(b)(6) or 12(c), matters outside

the pleadings are presented to and not excluded by the court,

the motion must be treated as one for summary judgment under

Rule 56.”). When a court elects to convert a Rule 12(b)(6)

motion into one for summary judgment, “[a]ll parties must be

given a reasonable opportunity to present all the material that

is pertinent to the motion.” Fed. R. Civ. P. 12(d). The

decision to convert is “wholly” within the trial court’s

discretion. Buck v. Am. Airlines, Inc.,

(1st

Cir. 2007) (citing Beddall v. State St. Bank & Trust Co.,

(1st Cir. 1998)).2

2 Traditionally, motions to dismiss FTCA actions on limitations grounds were presented as Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction. See, e.g., Gonzalez v. United States,

(1st Cir. 2002), as corrected (May 8, 2002). This is likely because many Circuits, including the First Circuit, held that the FTCA exhaustion requirement was a jurisdictional prerequisite that could not be waived. See, e.g.,

. Courts apply a different standard under Rule 12(b)(1) when determining whether to convert a motion into one for summary judgment. See

. Recently, however, the Supreme Court held that the FTCA limitations periods are not jurisdictional requirements. United States v. Kwai Fun Wong,

3 The court declines to convert the Government’s motion into

one for summary judgment here. The court agrees with the

plaintiffs that additional evidence beyond the allegations in

the complaint is necessary to determine whether the plaintiffs’

action is barred by the limitations period. Indeed, as

discussed below, this serves as the court’s primary basis for

denying the Government’s motion. But the court does not believe

that converting the Government’s motion into a Rule 56 motion

now, before any meaningful discovery has occurred, would serve

the interests of this litigation. The court will accordingly

analyze the Government’s motion under the Rule 12(b)(6)

standard.

Under Rule 12(b)(6), the court must accept the factual

allegations in the complaint as true, construe reasonable

inferences in the plaintiffs’ favor, and “determine whether the

factual allegations . . . set forth a plausible claim upon which

relief may be granted.” Foley v. Wells Fargo Bank, N.A.,

(1st Cir. 2014) (citation and quotation marks

omitted). A claim is facially plausible “when the plaintiff[s]

plead[] factual content that allows the court to draw the

, 1633 (2015). Thus, the government properly brought this action under Rule 12(b)(6), and the Rule 12(b)(1) conversion standard is inapplicable.

4 reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal,

(2009). Analyzing plausibility is “a context-specific task” in

which the court relies on its “judicial experience and common

sense.”

.

Background

Accepting the factual allegations set forth in the

plaintiffs’ complaint as true, the relevant facts are as

follows.

Plaintiff Heather Rodger (“Heather”) first came under the

care of Ammonoosuc3 in February of 2010, when she moved to New

Hampshire from Vermont. In March of 2012, Heather learned that

she was pregnant. On November 17, 2012, Heather gave birth to a

baby girl at Littleton Regional Hospital (“LRH”). After

delivery, Heather complained of “coccyx” pain in her tailbone.

Heather’s hospital providers indicated that this would resolve

over time.

On multiple occasions between December of 2012 and February

of 2014, Heather reported various symptoms to Ammonoosuc,

3 For the purposes of this Order, any healthcare services mentioned can be assumed to have been provided by Ammonoosuc unless another healthcare provider is explicitly mentioned.

5 including worsening coccyx pain, lower-left quadrant pain, left-

mid abdominal pain, constipation, nausea, bloody stool, and

perineal pain during intercourse. Ammonoosuc did not conduct

testing or refer Heather elsewhere to determine the source of

these symptoms.

On February 11, 2014, Heather returned to Ammonoosuc for an

annual physical exam. During this exam, Heather reported that

she had been straining during bowel movements, that stool

softeners were not helping, and that her stools were thin. She

also reported that for over a year she had been observing blood

on the toilet paper during bowel movements. Her treating

clinician performed a rectal exam and identified an internal

soft mass. The clinician documented a concern for internal

hemorrhoids and referred Heather for a consultation with a

gastroenterologist. Heather subsequently underwent a

colonoscopy and had the mass biopsied.

On March 26, 2014, Heather was informed that she had rectal

cancer and was told that she would need to undergo additional

testing in order to determine staging and to plan treatment.

During late-March and early-April of 2014, Heather underwent

additional testing at LRH and Dartmouth-Hitchcock Medical Center

(“DHMC”). On April 9, 2014, Heather attended a medical oncology

consultation at DMHC and was informed that she had locally

6 advanced rectal cancer without evidence of metastatic disease.

Heather was recommended a course of treatment and referred to a

radiation oncologist. Heather met with the radiation oncologist

on April 16, 2014, who requested a second read of her test

results and recommended that she meet with a surgeon at DHMC for

a second opinion on her treatment.

On April 24, 2014, Heather met with a surgeon at DHMC.

During this visit, the surgeon informed Heather that her cancer

was not localized and was metastatic to her lymph nodes.

Additional testing ruled out metastasis to her muscles and

bones, and, on April 30, 2014, her cancer was definitely staged

at T3.

Between May of 2014 and July of 2015, Heather underwent

aggressive treatment, including chemotherapy, radiation, and

surgery. In July of 2015, Heather was informed that the cancer

had metastasized in her lungs.

On April 14, 2016, Heather and her husband, Adam, through

present counsel, filed a complaint with the U.S. Department of

Health and Human Services (“DHHS”). Having received no response

from DHHS within six months, the plaintiffs filed the present

action in this court on October 24, 2016. At the time the

plaintiffs filed the present action, Heather’s cancer was Stage

IV and incurable.

7 Discussion

The Government contends that the plaintiffs’ cause of

action must be dismissed in its entirety because the plaintiffs

did not file their complaint with DHHS within the two-year

limitations period prescribed by the FTCA. The plaintiffs

object, arguing that they timely filed their DHHS complaint.

“Federal courts lack jurisdiction over claims against the

United States unless the Government has waived its sovereign

immunity.” Sanchez v. United States,

(1st Cir.

2014) (citing F.D.I.C. v. Meyer,

(1994)). The

FTCA serves as a limited waiver of that immunity for torts

committed by Government employees acting within the scope of

their employment “under circumstances where the United States,

if a private person, would be liable to the claimant in

accordance with the law of the place where the act or omission

occurred.”

(b)(1).

Under the FTCA, a claim is “forever barred unless it is

presented in writing to the appropriate Federal agency within

two years after such claim accrues or unless action is begun

within six months after the date of mailing.”

§ 2401(b).

The First Circuit reads this language to impose two contingent

deadlines upon a claimant: first, that the claimant file a claim

8 with the appropriate agency within two years of the date of

accrual; and second, that the claimant file an action in court

within six months of the date the agency denies that claim. See

Sanchez,

; see also id. at n. 6 (discussing the

exhaustion requirements under the FTCA). At present, the

parties’ sole dispute is whether the plaintiffs met the first of

these two deadlines.

A cause of action generally accrues under the FTCA at the

time a plaintiff is injured. Id. at 52 (citing Donahue v.

United States,

(1st Cir. 2011)). When a

plaintiff brings an FTCA claim for medical malpractice, however,

the Supreme Court has held that accrual may be delayed under the

“discovery rule” exception. See United States v. Kubrick,

, 122–23 (1979). Under this exception, a claim accrues

when a plaintiff discovers, or in the exercise of reasonable

diligence should have discovered, both that she is injured and

that the Government was the probable cause of that injury. See

Sanchez,

; Gonzalez, 284 F.3d at 288–89.

This is an objective standard. Sanchez, 740 U.S. at 52. A

plaintiff need not know that the injury was negligently caused.

Gonzalez,

(citing Kubrick,

).

Nor need she know the full extent of her injury.

(citing

Marrapese v. Rhode Island,

, 940 n.10 (1st Cir.

9 1984)). “Once a plaintiff knows of the injury and its probable

cause, [she] bears the responsibility of inquiring among the

medical and legal communities about whether [she] was wronged

and should take legal action.” Sanchez,

(quoting

Gonzalez,

).

The primary issue before the court is when the plaintiffs

became aware of their injury. The Government contends that this

occurred on March 26, 2014, when Heather was informed she had

rectal cancer. The plaintiffs contend that it occurred on April

24, 2014, when Heather was informed that her cancer was not

localized and was metastatic to her lymph nodes. In response,

the Government argues that metastasis is not an independent

diagnosis, but rather goes to the extent of the underlying

injury. The plaintiffs assert that being informed that cancer

is not localized and has metastasized constitutes an independent

injury.4

Neither the Supreme Court nor the First Circuit has

directly addressed whether discovering a cancer is metastatic

constitutes an injury independent from a diagnosis of localized

cancer. Those First Circuit cases that appear most directly on

4 The plaintiffs raise additional arguments in opposition to the government’s motion. (Doc. no. 9-1, at 7.) In light of the following discussion, the court need not reach the merits of these arguments.

10 point fail to persuade the court that this is an issue that can

be resolved on a Rule 12(b)(6) motion. Compare, e.g., Gonzalez,

(“The plaintiff need not know the full extent of

the injury . . .”) with, e.g., Nicolazzo v. United States,

(1st Cir. 1986) (“[T]he factual predicate for [the

plaintiff’s] medical malpractice claim could not have become

apparent to him before receiving the correct diagnosis . . .”).

And though the court has reviewed numerous instructive decisions

from other jurisdictions, these cases reveal no ready consensus

of authority on this issue.

The court accordingly declines to determine the date on

which the plaintiffs became aware of their injury based solely

on the pleadings. Absent mandatory precedent or a clear

consensus among other courts to the contrary, the court

concludes that the determination of this date is a factual issue

more appropriately addressed on summary judgment or at trial.

Cf. Drazan v. United States,

(7th Cir. 1985)

(noting that “[t]he record is silent” on the circumstances

surrounding the date of accrual, which was “not surprising since

the complaint was dismissed . . . before there was any

discovery”); McCall-Scovens v. Blanchard, No. CV ELH-15-3433,

, at *9 (D. Md. Oct. 27, 2016) (“It is premature

to conclude, well before the close of discovery, that the

11 statute of limitations defense is so clearly insufficient or

frivolous on its face as to be futile.”) (internal brackets and

quotation marks omitted) (citation omitted).

Conclusion

For the foregoing reasons, the Government’s motion to

dismiss (doc. no. 7) is denied. This determination is made

without prejudice to the Government’s ability to re-raise the

limitations issue in a motion for summary judgment or otherwise.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

March 21, 2017

cc: Kevin F. Dugan, Esq. Holly B. Haines, Esq. Robert J. Rabuck, Esq.

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