ROBERT C. CHAMBERS, Chief Judge.
Pending before the Court is Plaintiff's Motion to Increase Administrative Claim (ECF No. 53). For the reasons explained below, this Motion is
On January 17, 2012, Plaintiff Batina Adkins filed the pending Complaint individually and as next friend and guardian of her minor son, Draven Robertson, alleging that certain health care providers were negligent in providing prenatal care while Ms. Adkins was pregnant with Draven. Compl., ECF No. 1. As is required by the ("FTCA"),
Before filing an action in federal court pursuant to the FTCA, the plaintiff must first have presented the claim to the appropriate federal agency. 28 U.S.C. § 2675(a). The subsequent federal case "shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim." Id. § 2675(b). A plaintiff has the burden of proving that he or she meets this exception. Kielwien v. United States, 540 F.2d 676, 680 (4th Cir. 1976).
"To recover damages in excess of their administrative claim ..., plaintiffs must show that [the injured individual's] prognosis and future disability could not have been discovered prior to" the filing
912 F.2d at 86. This case shows that when determining if § 2675(b) is met, the Court should focus on when the claimant first develops symptoms of his or her condition, not when there is the first possibility that the condition could arise.
The District Court for the Eastern District of Virginia applied Spivey in Murphy v. United States, 833 F.Supp. 1199 (E.D.Va.1993). Murphy noted the circuit split in what qualifies as "newly discovered evidence" or "intervening facts," and in the end applied the Fourth Circuit's approach as explained in Spivey, which is "more favorable to the injured party" than the test used in other circuits. Murphy, 833 F.Supp. at 1203-04 & n. 4. In Murphy, the claimant experienced seizures prior to filing her administrative claim, but did not know that the recurrence of seizures would be a permanent condition for the remainder of her life until after the administrative claim was filed. The district court found that this justified an award above the amount in her administrative claim.
The court in Murphy cites Michels v. United States, 815 F.Supp. 1244 (S.D.Iowa 1993), for its "excellent summary" of the circuit split. Murphy, 833 F.Supp. at 1203 n. 4. The Court finds Michels's discussion of the circuit split instructive here as well. First, "[u]nder the approach adopted by the Eleventh Circuit, a claim may be increased when the claimant either did not know or reasonably could not have known the severity of the injury at the time the FTCA tort claim notice was filed." Michels, 815 F.Supp. at 1261. See also id. at 1260-61 (discussing this approach in more detail). The Fourth Circuit's Spivey decision is cited in Michels as falling into this first group. Id. at 1261. Second, "under the approach adopted by the First Circuit, a claimant may not amend his or her claim for higher damages unless the claimant has new information which was not reasonably discoverable at the time the FTCA tort claim notice was filed and such information does not go to the severity of claimant's known injuries." Id. at 1262. See also id. at 1261-62 (discussing this approach in more detail). This "worst case scenario" approach requires that the claimant "assert all [of] his or her claims for damages, no matter how remote or distant the possibility that those damage claims will come to fruition, or run the risk that he or she will be barred from asserting them in a subsequent FTCA action," id. at 1263, provided he or she was on notice of the possibility of that scenario, id. at 1262 (citation omitted).
In Lopatina v. United States, No. CBD-09-2852, 2011 WL 6217036 (D.Md. Dec. 13, 2011), the plaintiff underwent surgery after her administrative claim was filed; based on this surgery, her doctor corrected the diagnoses of her injuries. The district court found that this constituted "newly discovered evidence," explaining that "[a]lthough Plaintiff was aware before her administrative claim was decided that she might have to undergo surgery, she was not aware of the actual causes of her pain until after her claim was decided and she underwent the surgery and post-surgery treatment over the next years." Id. at *4. Compare with Kielwien, 540 F.2d at 680.
Plaintiff claims that she should be allowed to increase the amount of damages sought pursuant to the exception in § 2675(b) because "newly discovered evidence has come to light after the filing of the Administrative Claim, which was not nor could it have been reasonably discoverable at the time of the original filing of the Administrative Claim." Mem. Supp. Mot. 1, ECF No. 54. Defendant argues, however, that this supposedly-new evidence is merely "cumulative and confirmatory" of information which Plaintiff knew when the administrative claim was filed.
Close examination of the medical records here is crucial in determining whether Plaintiff's request to increase the amount of possible damages satisfies the test of § 2675(b). First, the Court considers the evidence available up to the point when the administrative claim was filed on November 29, 2010. Draven was born on October 21, 2008. Upon Draven's discharge from the hospital after birth, his mother knew that he had experienced a stroke based on a blood antibody problem and that he might have a hearing problem. Dep. Batina Adkins 53, 57, 60, Oct. 4, 2012, Ex. 1, ECF No. 53-1. The formal diagnoses of what he experienced at birth were bilateral basal ganglia infarction and germinal matrix hemorrhages caused from being "anti Kell and anti little C antibodies." Letter from Dr. Mitzi Payne, Jan. 6, 2010, U.S. Disclosures at 268, Ex. 2, ECF No. 53-1 at 7. He also suffered from direct hyperbilirubinemia. Letter from Dr. Payne, Apr. 8, 2009, Ex. 2, ECF No. 53-1 at 12.
Dr. Yoram Elitsur examined Draven on December 1, 2008, and noted that Draven was "[i]mproving with time." Ex. 2, ECF No. 53-1 at 15. Draven underwent an evaluation with West Virginia's Birth To Three program on December 22, 2008, which noted that he was previously diagnosed with multifocal and basal ganglia infarcts and that his mother was concerned about what delays he may experience as a result of brain bleeds at birth. Ex. 3, ECF No. 53-1. The evaluation found that Draven was "progressing well in development but there is some atypical development in the area of communication. He is also at risk for developmental delays due to the cerebral infarcts." Id. It also noted that referral to a neurologist would be helpful to assess the impact of the infarcts. Id.
Dr. Manimekalai Veeraswamy noted on April 7, 2009 (when Draven was approximately 4.5 months old), that Draven was experiencing possible seizure activity and acute breathing problems. U.S. Disclosures at 216, Ex. 2, ECF No. 53-1 at 5. Dr. Mitzi Payne, a pediatric neurologist, examined Draven on April 8, 2009, noting that Draven had had no seizure episode since February 2009 (but nonetheless requested an EEG) and that Draven's "development is overall appropriate for his age." Letter from Dr. Payne, Apr. 8, 2009, U.S. Disclosures at 288, Ex. 2, ECF No. 53-1 at 12. The Bayley Infant Neurodevelopmental Screener administered that day found that Draven was "[a]ppropriate for [his] corrected age in general" and "[a]ppears low risk [for developmental delay or neurological impairment] at this time." Ex. 5, ECF No. 53-1 at 19. In a follow-up appointment with Dr. Payne on July 29, 2009 (at nine months old), she noted that Draven's "development has been consistently a low
A developmental assessment on November 25, 2009 (thirteen months old), noted that Draven used be able to say "bye bye" but no longer did so and that "[h]is mother feels that he doesn't use as many words [as] he should." Ex. 8, ECF No. 53-1. The evaluation found, however, that in light of his overall behavior, he did not meet the eligibility requirements for participation in the Birth To Three program. Id. On January 6, 2010, Dr. Payne noted, "Draven has done very well with his development," but found that his score on the Bayley Infant Neurodevelopmental Screener now placed him at moderate risk for developmental delay or neurological impairment. Letter from Dr. Payne, U.S. Disclosures at 268, Ex. 2, ECF No. 53-1 at 7.
A speech-language evaluation on July 15, 2010, showed concerns with Draven's cognitive development, physical development, communication skills, adaptive skills, and social/emotional development. Ex. 10, ECF No. 53-1. Although he was 21 months old at the time, his communication was that of a nine-month old. The report found that he was "at risk" for delays. Another Birth To Three evaluation took place on August 2, 2010. Ex. 11, ECF No. 53-1. This evaluation noted that Draven had been in the Birth To Three program for a few months when he was younger, but that his mother subsequently took him out of the program because he was doing well. Lately, however, there had been communication and behavior problems, such as a regression in the amount of words he would use and increasingly violent and self-abusive behavior. The evaluation found that he had "atypical development in all areas of development" but that a "[p]sychological evaluation would be helpful for possible diagnosis or strategies for mom to use with behaviors." Id.
The above information comprises what Plaintiff knew before filing her administrative claim on November 29, 2010. In summary, Plaintiff knew shortly after Draven's birth that he had experienced infarcts and that there was a possibility of developmental delays. He appeared to be doing well developmentally during approximately the first year of his life. Around November 2009, concerns about his communication skills arose, but were not deemed such a concern that he should be placed back in the Birth To Three program at that point. In January 2010, his risk for developmental delay or neurological impairment increased from low to moderate. In July 2010 he was deemed to be "at risk" for delays, but no diagnosis was given. The August 2010 Birth To Three evaluation noted increasingly worrisome problems with Draven, but again did not provide a diagnosis.
Draven underwent a psychological evaluation on December 8, 2010, which found that his behaviors were consistent with being within the "severe range of Autism." Ex. 12, ECF No. 53-1. The evaluation found that "at this time a diagnosis of Autistic Disorder is indicated." Id. It also found that "[t]he overall prognosis is `good' for improved adaptive, cognitive behavioral and communication skills with continued training, therapies and support." Id. An evaluation at Cincinnati Children's Hospital on April 19, 2011, found that Draven had a "significant language disorder characterized by a severe impairment in Auditory Comprehension and Expressive Communication." Ex. 13, ECF No. 53-1. His "deficits in use of language and social interaction skills appeared to be pervasive in nature, however, due to Draven's young age and significant difficulties regulating his behavior it will be important to monitor
In support of her Motion, Plaintiff submits an affidavit from Dr. Michael E. Msall. Aff. Michael E. Msall, Sept. 10, 2013, Ex. 16, ECF No. 53-1. This affidavit explains at length the timeline of Draven's medical care and the knowledge known by each medical provider along the way. Dr. Msall states that:
Msall Aff. ¶ 4. Furthermore:
Id. ¶ 10. See also ¶ 13 ("It is likewise my opinion to a reasonable degree of medical certainty, that on November 29, 2010, when Batina Adkins filed a claim on behalf of herself and her infant son Draven Robertson with the United States Department of Health and Human Services, neither Batina Adkins, her counsel, or Draven Robertson's medical providers would have been able to determine what his [sic] ongoing health, rehabilitational, behavioral, developmental, community, vocational, and family support services would be needed or the costs thereof. Such information was not reasonably discoverable at the time the claim was filed.").
Based on the evidence presented, the Court finds that the information submitted by Plaintiff falls into § 2675(b)'s exception as "newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency." In reaching this decision, the Court uses the standard applicable in the Fourth Circuit — which is more favorable to claimants — rather than the stricter test used in other circuits. When Draven was born, it was known that he had experienced a stroke and would have some sort of permanent injury. At least within the first year, it appeared that the worst fears about the impacts of his stroke were not materializing. Indeed, his development was noted to be fine. As time progressed after that, however, medical records noted increasing problems with Draven, including communication and behavioral concerns, but made no formal diagnoses. After the administrative
The Court draws a parallel between Draven's timeline of medical evaluation and that in Spivey. In Spivey, the plaintiff began taking a drug before filing her administrative claim which was known to cause tardive dyskinesia as a possible side effect; she did not develop any symptoms of tardive dyskinesia until after her claim was filed, and the court found that her development of tardive dyskinesia was "newly discovered" evidence. Like in Spivey, Plaintiff knew since Draven's birth that severe and permanent developmental disabilities were a possibility. As the time drew closer to the filing of the claim, Draven began to experience more troubling behavior. It was not until after the administrative claim was filed, however, that medical personnel established concretely that Draven would have such significant, permanent disabilities. A parallel can also be drawn to Murphy, in that Draven's parents — like the claimant in Murphy — did not know that the severity of Drave's condition was permanent until after the claim was filed. The diagnoses provided after the claim was filed were not merely "cumulative and confirmatory," but rather were a departure from what Plaintiff had been told earlier. This is especially true given the challenges of diagnosing such a young child.
Defendant cites many cases from other Circuits, but the Court finds those cases distinguishable. For example, in Low v. United States, 795 F.2d 466 (5th Cir.1986), the Fifth Circuit found that the claimant was not justified in receiving in award above the amount sought in the administrative claim. The Court of Appeals noted that:
Id. at 471 (emphasis added). Low utilizes a worst-case scenario test, which this Court declines to apply in the instant case. Lebron v. United States, 279 F.3d 321 (5th Cir.2002), similarly uses a worst-case scenario test to prohibit increased damages for a child who suffered injuries at birth. See also Dickerson ex rel. Dickerson v. United States, 280 F.3d 470 (5th Cir.2002) (using worst case scenario test); Reilly v. United States, 863 F.2d 149 (1st Cir.1988) (same). In fact, Defendant cites no
For the reasons explained above, Plaintiff's Motion to Increase Administrative Claim (ECF No. 53) is
The Court
