Stewart-Wilson v. United States

DELANI J. STEWART-WILSON,A Minor, by her natural mother and Legal Guardian, D'Ericka Stewart, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

2:17-cv-01335

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

April 29, 2019

OPINION

Mark R. Hornak, Chief United States District Judge

In this medical malpractice action, Defendant United States of America argues that Plaintiff Delani Stewart-Wilson's claim is untimely under the Federal Torts Claims Act, 28 U.S.C. § 2671, et seq. ("FTCA"). This Court previously denied Defendant's motion to dismiss, ECF No. 5, which relied on the same timeliness argument presented here, on the basis that factual questions remained as to whether Plaintiff was entitled to equitable tolling. Those questions have now been answered, Plaintiff is not entitled to equitable tolling, and Defendant's Motion for Summary Judgment, ECF No. 25, will be granted.

I. Background¹

A. Factual and Procedural History

On November 9, 2009, D'Ericka Stewart ("Ms. Stewart" or "Plaintiff's mother") gave birth to Plaintiff at Sharon Regional Hospital ("Sharon Hospital") in Mercer County, Pennsylvania, under the care of John Gallagher, M.D. ("Dr. Gallagher"). (Def.'s Statement of Material Facts ("SMF") ¶ 1, ECF No. 27; Pl.'s Counter Statement of Material Facts ("CSMF") ¶ 1, ECF No. 32.) During the birth, Plaintiff suffered a brachial plexus injury,² which allegedly caused permanent and irreparable harm to her right shoulder and arm. (Def.'s SMF ¶ 10; Pl.'s CSMF ¶ 11.) Nearly seven years later, Plaintiff, by her mother and legal guardian, initiated a medical malpractice suit against two defendants, Dr. Gallagher and Sharon Hospital, in state court on September 29, 2016. (Compl., ECF No. 1 ¶ 9; Def.'s SMF ¶ 2; Pl.'s CSMF ¶ 2.) Plaintiff asserts that the deliberate delay in initiating this action was a result of her Counsel's reliance, consistent with Plaintiff's Counsel's custom and practice, on Pennsylvania's Minors' Tolling Statute, 42 Pa. C.S. § 5533(b)(1).³ (Pl.'s CSMF ¶ 72.)

At all relevant times to the events at issue here, Dr. Gallagher was employed by PrimaryHealth Network, a deemed entity that was eligible for FTCA malpractice coverage, which made Dr. Gallagher a "deemed" federal employee under the FTCA.⁴ (Def.'s SMF ¶¶ 6, 11.) Although Ms. Stewart visited Dr. Gallagher at Primary Health Network's offices for her pre-natal care,⁵ Plaintiff Counsel's investigation focused on the delivery and birth of Plaintiff—which occurred at Sharon Hospital—and Plaintiff's injuries thereafter. (Def.'s SMF ¶ 48; Pl.'s CSMF ¶ 66.) Plaintiff's initial state court complaint pled that Dr. Gallagher was an agent or employee of Sharon Hospital, as he was listed as an Obstetrics and Gynecology doctor on Sharon Hospital's website. (Pl.'s Ex. 1-Compl. filed in Mercer Cty. Ct. of C.P. ¶¶ 4-5, ECF No. 31-1.) Consequently, the state court complaint made no mention of Primary Health Network or any events prior to Ms. Stewart's arrival at Sharon Hospital to give birth. (See Pl.'s CSMF ¶¶ 25-27.)

On January 24, 2017, the United States removed that case from state court to this Court and moved to substitute the United States for Dr. Gallagher on the basis that Dr. Gallagher was at all times working within the scope of employment with the United States of America. (Case No. 17-cv-113, at ECF No. 2.)⁶ The Court granted that motion. (Id. at ECF No. 11.)

On November 20, 2018, the United States filed a motion to dismiss this action on the basis that Plaintiff failed to timely file her claim within the two-year statute of limitations as is required under the FTCA.⁷ (ECF No. 5.) It was undisputed at that time (and remains undisputed now) that Plaintiff's claim accrued on the date she was born—November 9, 2009—and that Plaintiff had filed her claim in state court more than two years after the birth. (Op., ECF No. 20, at 3.) Plaintiff responded with the same argument that it makes now: Dr. Gallagher's FTCA status was sufficiently concealed from Plaintiff and Plaintiff's Counsel during their diligence investigation of this case, so the Court should apply equitable tolling to rescue Plaintiff's otherwise time-barred claim. The Court denied Defendant's motion to dismiss, concluding that it could not "fully assess the totality of the relevant circumstances that would govern the application (or not) of the equitable tolling doctrine to this case." (Op. at 15; Order, ECF No. 21.) The Court, therefore, ordered the parties to engaged in specific discovery "on matters bearing on the statute of limitations and the assertion of the equitable tolling doctrine . . . ." (Order, ECF No. 21.)

B. Fruits of Discovery: Record on Defendant's Motion for Summary Judgment

Plaintiff's Counsel acknowledges that his investigation of this case was limited in scope "to the time when Dr. Gallagher's alleged negligence occurred." (Pl.'s CSMF ¶ 12.) Because Plaintiff's Counsel was operating under the belief that the alleged negligence was related solely and entirely to the labor and delivery of Plaintiff, he says that his investigation was temporally limited to "the time at which Plaintiff presented to Sharon Hospital to give birth," which occurred on November 9, 2009, and he only requested medical records generated between November 1, 2009, and the present. (Id. ¶¶ 12-16.) Those record requests were made within the two-year FTCA statute of limitations.⁸

Of the medical records that Plaintiff's Counsel collected during the two-period between Plaintiff's birth and the expiration of the FTCA's statute of limitations, two pages contained the words "Primary Health Network," and this phrase was located in the footer of each page, along with Dr. Gallagher's name and contact information. (Pl.'s CSMF ¶¶ 22-23 (referencing ECF No. 31-6).) A copy of one of these pages is attached to this Opinion as Exhibit A.⁹

Plaintiff's Counsel continued to request Plaintiff's medical records, collecting medical records relevant to Plaintiff's birth and her mother's delivery and available records relating to Plaintiff's damages. (Id. ¶ 66.) But Plaintiff's Counsel never requested Ms. Stewart's medical records from Primary Health Network, where Ms. Stewart was treated prior to delivering Plaintiff, nor did he request any records from any healthcare provider that identified a responsive date range earlier than November 1, 2009. (Id. ¶¶ 20, 21; Def.'s SMF ¶ 42.)

As explained in detail below, it is undisputed that Plaintiff's Counsel performed no investigation of Primary Health Network within the two-year FTCA statute of limitations. (Pl.'s CSMF ¶¶ 25-31.) With respect to Dr. Gallagher's employment status, Plaintiff's Counsel searched Google and Sharon Hospital's own website. (Id. ¶¶ 42, 71.) The undisputed facts related to Plaintiff's Counsel's investigation of Dr. Gallagher's employment status are as follows:

• Plaintiff's Counsel's relied on Sharon Hospital's website, which listed Dr. Gallagher as an Obstetrics & Gynecology doctor and contained a biographical page of Dr. Gallagher,¹⁰ to assume that Dr. Gallagher was an agent of Sharon Hospital. (Id. ¶¶ 6, 40, 71.)

• Plaintiff's Counsel never called Sharon Hospital to inquire if Dr. Gallagher was, in fact, employed by Sharon Hospital. (Def.'s SMF ¶ 53.)

• Plaintiff's Counsel never corresponded with or called Dr. Gallagher to inquire into his affiliation with any entity—Primary Health Network, Sharon Hospital, or otherwise. (Id. ¶ 54.)

• Plaintiff's Counsel did not request billing records from Dr. Gallagher. (Id. ¶ 52.)

• Plaintiff's Counsel did not investigate or visit Primary Health Network's website prior to the removal of the action from state court to federal court. (Pl.'s CSMF ¶ 28.)

• Plaintiff's Counsel did not call Primary Health Network to ascertain its status as a federally deemed health care facility. (Def.'s SMF ¶ 50.)

• Plaintiff's Counsel did not investigate the Health Resources and Services Administration (HRSA) database's website to inquire as to the federal status of Dr. Gallagher.¹¹ (Pl.'s CSMF ¶ 32.) However, the HRSA did not enable users to search by physician name during the relevant period in which the FTCA statute of limitations was running. (Id. ¶ 35.) But it did enable a search by entity, such as Primary Health Network. (Id. ¶ 36.)

• Plaintiff's Counsel did not investigate Dr. Gallagher or Primary Health Network on LEXIS or Westlaw "prior to the current discovery window," and it is not in Plaintiff's Counsel's "custom or practice" to conduct such a legal search of defendant doctors in medical malpractice cases. (Id. ¶¶ 57, 65.)

• Plaintiff's Counsel performed a Google search of both Sharon Hospital and Dr. Gallagher¹² but did not perform a Google search of Primary Health Network. (Id. ¶ 46.) In the course of that Google search on Dr. Gallagher, Plaintiff's Counsel found newspaper articles published in 2001 and 2002, respectively, and related to a jury award against Dr. Gallagher that precipitated him filing for bankruptcy. (Id. ¶ 43-44.)

The record does not reflect that there was any impediment to Plaintiff's Counsel carrying out any of these tasks, and none has been advanced to the Court.

Apparently operating under the assumption that Dr. Gallagher was only an agent of Sharon Hospital, Plaintiff's Counsel proceeded to review all of the medical records he had obtained, and he consulted and obtained a medical expert, Dr. Michael Kreitzer, on matters related to the standard of care.¹³ (Id. ¶¶ 67-68.) Plaintiff's Counsel asserts that, in reliance on Pennsylvania's Minors' Tolling Statute, he "deliberately waited to file suit in anticipation of acquiring additional knowledge regarding the severity and permanency of the [Plaintiff's] injuries," believing that was in the best interests of Plaintiff. (Id. ¶¶ 72, 75.)

Meanwhile, from 2009 to 2011, a framed copy of Primary Health Network's Mission Statement hung in the waiting room of each Primary Health Network office and stated: "The mission of the Primary Health...