KATHERINE B. FORREST, District Judge.
Plaintiff brings this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, alleging that Dr. Christine Kerr, a physician who treated plaintiff at Hudson River Health Care, Inc. ("HRHC") in Peekskill, N.Y., failed to timely and properly diagnose and treat her brain tumor, causing past and future injuries. Plaintiff also brings separate claims under the FTCA for lack of informed consent and negligent hiring.
Before the Court is a motion for summary judgment. Plaintiff filed suit after the two-year statute of limitations for FTCA claims elapsed and now contends that her claims are timely under an exception to the FTCA time bar. Moreover, after defendant moved for summary judgment on the basis that there is no triable issue since plaintiff received immediate treatment from Dr. Kerr, plaintiff seeks permission to file an amended complaint in order to alter the date of initial treatment.
For the reasons set forth below, the Court GRANTS defendant's converted motion for summary judgment and DENIES plaintiff's request for leave to amend.
Plaintiff alleges that "[b]eginning on or about February 2010 and continuing thereafter through on or about the present, plaintiff was a patient" of Dr. Kerr at HRHC. (Compl. at ¶ 12.) At all relevant times, HRHC was a federally supported health center, and Dr. Kerr was an employee of defendant. (
Defendant has submitted medical records from plaintiff's U.S. Department of Health and Human Services ("HHS") administrative file and a declaration from Dr. Kerr indicating that Dr. Kerr evaluated plaintiff on February 8, 2010. (Decl. of Daretia M. Hawkins ("Hawkins Decl.") (ECF No. 11) Ex. B; Decl. of Christine Kerr, M.D. ("Kerr Decl.") (ECF No. 29).) On that date, plaintiff described experiencing headaches; Dr. Kerr immediately ordered an MRI. (
Plaintiff alleges that defendant failed to "properly diagnose, care for and treat" her, resulting in "severe and serious personal injuries, a severe shock to her nervous system and certain internal injuries and was caused to suffer severe physical pain and mental anguish. . . ." (Compl. at ¶ 12, 14.) Plaintiff also alleges that the defendant failed to inform her of the "risks, hazards and alternatives connected with the treatments rendered and procedures performed," (
Plaintiff first filed suit against Dr. Kerr and HRHC in New York state court in May 2012. In April 2013, the action was removed to federal court in the Southern District of New York. After granting the United States' motion to be substituted as defendant, the court dismissed the action in July 2013 for lack of subject matter jurisdiction.
Plaintiff then filed an HHS Standard Form 95 ("SF 95") Claim for Damage, Injury or Death, which HHS received in October 2010. Plaintiff's SF 95 form stated that Dr. Kerr "ignored her" after treating her "from February 2010 forward" and that Dr. Kerr's "[f]ailure to diagnose this condition resulted in severe psychological, physical, and financial damages." (Hawkins Decl. Ex. A.) On August 21, 2014, HHS denied Plaintiff's claim. (Hawkins Decl. Ex. D.) On December 17, 2014, plaintiff filed the instant suit.
On June 22, 2015, plaintiff filed a proposed Amended Complaint along with her opposition to summary judgment. In her proposed Amended Complaint, plaintiff alleges for the first time that she "complained about headaches to Dr. Christine Kerr on numerous occasions," "beginning on or about April 2009 to February 2010." (Decl. of Nkereuwem Umoh ("Umoh Decl.") (ECF No. 25) Ex. 4, at ¶ 12.) Plaintiff has not proffered any evidence in support of this new assertion.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
The FTCA allows individuals to bring claims against the federal government for torts committed by federal employees. The FTCA is a waiver of sovereign immunity to the extent that "a private person . . . would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).
Before filing an FTCA claim, a plaintiff generally must first "present [the claim] in writing to the appropriate Federal agency within two years after such claim accrues."
One exception to the FTCA's timeliness requirement, and the only exception relevant to this action, is the Westfall Act. 28 U.S.C. § 2679(d)(5). The Westfall Act allows a plaintiff whose initial suit in state court is removed to federal court and subsequently dismissed after the two-year statute of limitations has expired to timely file an administrative claim 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 appropriate Federal agency within 60 days after dismissal of the civil action."
To bring a claim under the FTCA, plaintiff must meet the threshold statutory requirements: timeliness and exhaustion. Moreover, to survive summary judgment, plaintiff must raise a genuine issue of material fact by pointing to the record evidence. For the reasons set forth below, plaintiff has failed to do so and her claims therefore fail as a matter of law.
Plaintiff's claims are untimely. Plaintiff does not contest that she failed to file her instant complaint within the FTCA's required two year timeframe. She instead argues that she qualifies for the exception under the Westfall Act. 28 U.S.C. § 2679(d)(5).
Plaintiff is incorrect. First, the Westfall Act requires that plaintiff's claim "would have been timely if it had been filed on the date the underlying civil action was commenced." 28 U.S.C. § 2679(d)(5)(A). Plaintiff's original state court action was filed on May 5, 2012, two months after the statute of limitations under the FTCA elapsed. Plaintiff urges that her delay should be excused because she did not know that HRHC was a federal facility. This lack of knowledge does not, however, excuse the delay as a matter of law. That HRHC is a federal facility is evident on its website homepage. (Umoh Decl. ¶ 9;
Second, even assuming that plaintiff had raised a triable issue on this point, her administrative filing was untimely. This provides a separate basis for dismissal. The Westfall Act requires that a plaintiff file an administrative claim within sixty days of the dismissal of her civil action. 28 U.S.C. § 2679(d)(5)(B). Plaintiff's case was dismissed on July 31, 2014.
Thus, plaintiff does not qualify for the Westfall Act and her claims are untimely under the FTCA.
Plaintiff's second and third causes of action, lack of informed consent and negligent hiring, fail because she has not exhausted administrative remedies under the FTCA. 28 U.S.C. § 2401. Plaintiff's HHS filing only alleges failure to diagnose. (Hawkins Decl. Ex. A.) Though an administrative claim under the FTCA need not "meet formal pleading requirements," it must contain information specific enough so that "a reasonably thorough investigation of the incident should have uncovered any pertinent information in the government's possession."
Plaintiff also cannot succeed on her claim for negligent hiring because this court does not have jurisdiction over an FTCA action based on a legal claim that is unavailable in the state where the act occurred. 28 U.S.C. § 1346(b)(1);
In addition to the above independent bases for dismissal, plaintiff has also failed to raise a triable issue on the merits.
To raise a triable issue for a failure to diagnose claim, plaintiff must proffer evidence that Dr. Kerr did not "comport with accepted medical practice" and that "any such failure was the proximate cause of [plaintiff's] injuries."
Plaintiff fails to present evidence that Dr. Kerr departed from accepted medical practice by failing to render a timely diagnosis, or that any such failure caused plaintiff's injuries. The record evidence is undisputed that plaintiff visited Dr. Kerr on February 8, 2010 stating that she was experiencing headaches, was diagnosed on February 17, 2010 promptly after the results of her MRI, and was immediately referred to endocrinology and surgery specialists. (Hawkins Decl. Ex. B.) Thus, there is no triable issue on the failure to diagnose claim.
Plaintiff attempts to raise a triable issue through a proposed amended pleading. It is entirely unsupported and comes too late. Plaintiff now asserts that she saw Dr. Kerr in 2009 for her headaches. This assertion is supported only by argument in plaintiff's brief. Plaintiff has not even submitted a declaration supporting this assertion. This "argument" cannot defeat summary judgment. Indeed, the argument is all the more surprising as it is a clear and sudden departure from her prior pleadings and filings and contradicts the record evidence. The parties agree that plaintiff did in fact visit Dr. Kerr in 2009 — but the medical notes of those visits fail to support plaintiff's claim. The notes describe litany of plaintiff's ailments, but do not mention a headache. (Hawkins Decl. Ex. B; Kerr Decl. at ¶ 4.) Conclusory claims that contradict record evidence are insufficient to defeat summary judgment.
Plaintiff's pleadings, filings, and federal agency submissions prior to her opposition brief consistently state she first visited Dr. Kerr for her headache in February 2010.
Plaintiff's second claim is a lack of informed consent. To raise a triable issue as to that claim, plaintiff must show:
The undisputed evidence demonstrates that plaintiff's surgery did not take place at HRHC and Dr. Kerr did not perform it. Thus, there is no triable issue on whether defendant failed to inform plaintiff of the "reasonably foreseeable risks associated with the treatments, and the alternatives" of her surgery.
Plaintiff belatedly seeks leave to an amended complaint. While courts shall "freely give leave" to amend, Fed. R. Civ. P. 15, it need not do so when the proposed amendment would be futile, or when "the motion is made after an inordinate delay, no satisfactory explanation is offered for the delay."
For the reasons set forth above, defendant converted to a motion for summary judgment is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 13.
SO ORDERED.