Meyer v. United States

23 F. Supp. 3d 861, 2014 U.S. Dist. LEXIS 73632, 2014 WL 2434940
CourtDistrict Court, W.D. Michigan
DecidedMay 30, 2014
DocketNo. 2:14-CV-29
StatusPublished
Cited by1 cases

This text of 23 F. Supp. 3d 861 (Meyer v. United States) is published on Counsel Stack Legal Research, covering District Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meyer v. United States, 23 F. Supp. 3d 861, 2014 U.S. Dist. LEXIS 73632, 2014 WL 2434940 (W.D. Mich. 2014).

Opinion

OPINION

ROBERT HOLMES BELL, District Judge.

This is a medical malpractice claim brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. Defendant has filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) and in the alternative for Summary Judgment under Fed.R.Civ.P. 56 (ECF No. 6). Plaintiff filed a Response (ECF No. 14) to [862]*862which Defendant has filed a Reply (ECF No. 16). Having fully considered the arguments presented, the Court holds oral argument unnecessary for disposition of the motion.

At this stage, the Court need only answer one question: did Plaintiffs cause of action accrue more than two years before he filed an administrative claim. For the reasons, that follow, the Court finds that it did not, and will deny Defendant’s motion.

I.

The operative facts in this case are undisputed. Plaintiff sets out a concise statement of these facts in his response brief and accompanying affidavit. (Pl.’s Resp. 8-12, ECF No. 14.) Additional facts are supplemented from the complaint and Defendant’s brief. (Compl., ECF No. 1; Def.’s Br., ECF No. 7.) Plaintiff was born in 1942 and began smoking cigarettes at the age of five.

On January 3, 2007, he went to the Oscar G. Johnson Veterans Administration Medical Center in Iron Mountain, MI (VAMC) for a general physical. The examining physician, Dr. Scharffenberg, found Plaintiff to have decreased air entry into his lungs, hypertension, obstructive lung disease, and tobacco use disorder. Dr. Scharffenberg ordered a CT scan of Plaintiffs thorax to screen for lung cancer. Plaintiff had the CT scan on January 17, 2007. Another physician interpreted the scan and noted an abnormality on Plaintiffs lung. This physician recommended a follow-up CT scan in four months. Dr. Scharffenberg updated his January 3 progress note to reflect the result of the CT scan and the recommended follow up.

Plaintiff had his follow up appointment on April 4, 2007. He told a nurse that he was nervous and wanted to know the results of his January CT scan. When he met with Dr. Scharffenberg, however, he was neither provided the results of the scan, nor was he told a follow up scan was recommended.

Plaintiff returned to VAMC periodically over the next three years for routine care and treatment for his various ailments, including Chronic Obstructive Pulmonary Disease (COPD). At no time was the result of his CT scan discussed with him, nor was the recommendation for a follow up CT scan.

Finally, on August 3, 2010, Dr. Montante examined Plaintiff. He noted the results of the 2007 CT scan. Dr. Montante ordered a new CT scan to follow up on the 2007 CT scan. On August 11, 2010, a new CT scan was performed on Plaintiff. That scan revealed a progression of the abnormality on Plaintiffs lung that was consistent with malignancy. Plaintiff underwent further testing and on September 17, 2010, he was told he likely had lung cancer. Plaintiff was not advised that his 2007 CT scan revealed abnormalities.

By October 4, 2010, Plaintiff had become dissatisfied with his treatment at the VAMC. He therefore requested all his medical records from VAMC. The records were released to Plaintiff, and contained the radiology reports of his 2007 and 2011 CT scans. Plaintiff did not review his records, but rather surrendered them to his new physicians on October 25, 2010. Plaintiff continued to see his new physicians and was treated for his cancer over the next 18 months.

On May 9, 2012, the VAMC completed a Disclosure of Adverse Event with Plaintiff. The VAMC advised Plaintiff explicitly for the first time that his 2007 CT had shown an abnormality, that the recommended follow-up for another CT scan was four months, and that another CT scan had not been performed until 2010. Plaintiff filed a SF-95 form on December 20, 2012, in[863]*863forming the VAMC he was seeking damages from their alleged failure to timely diagnose his cancer.

II.

“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). The general rule is that “ ‘a tort claim accrues at the time of the plaintiffs injury[.]’ ” Hertz v. United States, 560 F.3d 616, 618 (6th Cir.2009) (quoting United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)). In the context of a medical malpractice case, a plaintiffs claim “accrues when he ‘knows both the existence and the cause of his injury.’ ” Amburgey v. United States, 733 F.3d 633, 636 (6th Cir.2013) (quoting Kubrick, 444 U.S. at 113, 100 S.Ct. 352). Kubrick therefore established an “inquiry-notice rule” for medical malpractice claims brought under the FTCA. Amburgey, 733 F.3d at 636.

Specifically, a medical malpractice claim accrues “when a plaintiff possesses enough information with respect to [his] injury that, ‘[h]ad [he] sought out independent legal and medical advice at that point, [he] should have been able to determine in the two-year period whether to file an administrative claim.’ ” Hertz, 560 F.3d at 618 (quoting McIntyre v. United States, 367 F.3d 38, 53 (1st Cir.2004)). Determining when a plaintiff has such knowledge is “necessarily fact-intensive.” Hertz, 560 F.3d at 619.

When a plaintiffs claim of malpractice is predicated upon “a physician’s failure to diagnose, treat, or warn” and that failure “results in the development of a more serious medical problem” identifying the injury and its cause is more difficult than when “affirmative conduct by a doctor inflicts a new injury.” Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir.1983). In such a case:

the injury is not the mere undetected existence of the medical problem at the time the physician failed to diagnose or treat the patient or the mere continuance of that same undiagnosed problem in substantially the same state. Rather, the injury is the development of the problem into a more serious condition which poses greater danger to the patient or which requires more extensive treatment.

Id. (emphasis in original).

Therefore, in a case involving failure to diagnose, treat, or warn, a plaintiffs cause of action accrues when he “becomes aware or through the exercise of reasonable diligence should have become aware of the development of a pre-existing problem into a more serious condition.” Id.; see also Harvey v. United States, 685 F.3d 939

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Bluebook (online)
23 F. Supp. 3d 861, 2014 U.S. Dist. LEXIS 73632, 2014 WL 2434940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyer-v-united-states-miwd-2014.