Zander v. United States

843 F.Supp.2d 598

Michele ZANDER, Plaintiff,

v.UNITED STATES Of America, Defendant.

Civil Action No. 8:09–CV–02649–AW.

United States District Court,

D. Maryland,

Southern Division.

Feb. 13, 2012.

Elijah Dale Adkins, III, Emily Claire Malarkey, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD, Andrea R. Bennett, Bennett and Associates, Atlanta, GA, for Plaintiff.

Melanie L. Glickson, Maryland Office of the United States Attorney, Baltimore, MD, Debra R. Coletti, United States Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ALEXANDER WILLIAMS, JR., District Judge.

Plaintiff Michele Zander brings this action against Defendant United States of America. Mrs. Zander asserts a claim of medical malpractice under the Federal Tort Claims Act. Presently pending before the Court is the United States' Motion to Dismiss or for Summary Judgment (“Motion to Dismiss”). The Court has reviewed the entire record and finds no hearing necessary. For the reasons that follow, the Court GRANTS Defendant's Motion to Dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Court extracts the bulk of the following facts from the Memorandum Opinion it issued on February 2, 2011 (“Feb. 2 Opinion”). Mem. Op. 1–3, Doc. No. 26; Zander v. United States, 786 F.Supp.2d 880, 881–83 (2011). The instant case arises from a series of events that Mrs. Zander alleges caused her temporary paralysis and permanent physical limitation. In August 1997, Mrs. Zander began to experience pain in her lower back and numbness in her legs. She sought treatment at the Family Practice Clinic at Maxwell Air Force Base (“Maxwell AFB”) in Alabama, where she was referred to physical therapy. Despite this measure, Mrs. Zander continued to experience chronic weakness and pain. Therefore, she returned to the Maxwell AFB Clinic and was prescribed pain medication in a bid to alleviate her symptoms. This treatment also bore little fruit. Mrs. Zander's X-rays came back negative and medical personnel had no explanation for her symptoms. Accordingly, Mrs. Zander requested and received a referral to an orthopedist at Maxwell AFB.

In September 1997, medical personnel took an MRI of Mrs. Zander's upper body. The MRI disclosed a defect known as an arteriovenous malformation (“AVM”) in her spine. Mrs. Zander alleges that she was not made aware of the AVM and that she did not receive treatment for this condition. Mrs. Zander also alleges that she was not advised to limit her activities, seek further consultation, undergo surgery, or otherwise take any remedial action. Further, Mrs. Zander avers that the physician at Maxwell AFB informed her that she had two bulges in her back, but not that she had a herniated disc. Additionally, Mrs. Zander contends that the physician told her that it was normal to experience back pain at times.

Over the next three years, Mrs. Zander continued to receive treatment at Maxwell AFB for her chronic pain. Mrs. Zander maintains that her healthcare providers at Maxwell AFB repeatedly advised her that she had no serious problem. Consequently, Mrs. Zander contends, she continued her active lifestyle oblivious to her lurking health hazard.

By 2002, Mrs. Zander and her husband had relocated to the Washington, D.C. area, where the clinics at National Naval Medical Center (“NNMC”) in Bethesda assumed her care. In the last week of November 2002, the events precipitating the injury of which Mrs. Zander complains took place. On November 24, 2002, after using a leaf vacuum for several hours, Mrs. Zander began to experience back and leg pain. By November 26, 2002, Mrs. Zander's symptoms had grown worse. The next morning, Mrs. Zander repaired to the emergency room at NNMC, where personnel administered an injection and oral medication to temporarily relieve her pain. On November 29, 2002, Mrs. Zander returned to the clinic at NNMC and received more pain medication. Mrs. Zander was sent home with instructions to return for an MRI if the numbness intensified. At 5:30 that afternoon, Mrs. Zander returned to the emergency room at NNMC. Allegedly, in the face of efforts to discharge her, Mrs. Zander persuaded medical personnel for an additional opinion and MRI.

On November 30, 2002, Mrs. Zander was admitted to the hospital at NNMC. At 2:00 a.m. or thereabouts, medical personnel conducted an MRI. According to Mrs. Zander, medical personnel reviewed the earlier MRI conducted at Maxwell AFB and noted the presence of AVM. By this time, Mrs. Zander had started to feel numbness in her posterior and to experience difficulty with urination and bowel movements. Mrs. Zander underwent a procedure known as an angiogram with embolization of the spinal cord AVM. Not long thereafter, weakness beset Mrs. Zander's lower body. Despite the additional efforts of medical personnel, Mrs. Zander's lower body became paralyzed. Mrs. Zander acknowledges that, through a corrective surgery carried out in Canada, her symptoms have improved to the point that she can move both legs and walk with a walker. Mrs. Zander asserts, however, that her physical limitations and inability to walk without assistance are permanent.

Pursuant to the Federal Tort Claims Act (“FTCA”), Mrs. Zander filed an administrative tort claim in late November 2004, nearly two years to the day after her injury. Andrea Bennett represented Mrs. Zander at this time. See Doc. No. 34–2. Ms. Bennett was affiliated with the firm Gray & Gilliland, P.C., whose address she used in her correspondence with the United States. See id. Gray & Gilliland's address was 750 Hammond Drive Building 12, Suite 200, Atlanta, GA 30328. Id. On May 3, 2005, during the administrative review process, Ms. Bennett notified the United States that she had relocated to the firm Gilliland, Ratz & Browning, P.C., whose address was 1455 Lincoln Parkway Suite 300, Atlanta, GA 30346. See Doc. No. 34–4.

On October 12, 2006, the United States notified Mrs. Zander that its investigation had uncovered no actionable malpractice and invited her to submit additional medical evidence substantiating her claim. Doc. No. 34–5. The United States sent this notice to the Lincoln Parkway address. See id. Mrs. Zander accepted this invitation and, after the United States completed its supplemental review, it issued a notice of final denial on February 22, 2008. See Doc. No. 34–6. The United States sent this notice, like the original, to Ms. Bennett's Lincoln Parkway address. See id.

On July 18, 2008, Ms. Bennett requested reconsideration of the United States' denial. Doc. No. 34–7. In this letter, which was sent from the Lincoln Parkway address, Ms. Bennett asked the United States to provide her with Mrs. Zander's medical records. Id. On July 30, 2008, the United States sent a letter to Ms. Bennett at the Lincoln Parkway address stating that it was willing to consider additional medical reports before taking further action on her claim. See Doc. No. 34–8. The July 30 mailing included the medical records that Ms. Bennett requested on July 18. See id.

On March 16, 2009, via certified mail, the United States sent a notice of final denial of Mrs. Zander's claim to the Lincoln Parkway address. Doc. No. 34–10. Someone at the Lincoln Parkway address signed for and received the letter. Id. The letter was marked “return to sender” and received hand-written instructions to forward it to a different address. Doc. No. 34–11. On April 8, 2009, the Government resent the denial letter to the forwarding address. Doc. No. 34–12 at 2.

On October 8, 2009, six months to the day after the United States resent the denial letter, Mrs. Zander filed a Complaint against the United States. Compl., Doc. No. 1. On April 14, 2010, the United States moved to dismiss on the ground that Mrs. Zander filed her malpractice claim outside Maryland's statute of repose. Doc. No. 13. In its Feb. 2 Opinion, the Court rejected this argument, holding that FTCA's “deemed denied” provision preempts Maryland's statute of repose. See Zander, 786 F.Supp.2d at 886–87. Although the Court's Feb. 2 Opinion treated with limitations issues, the United States did not raise the related argument it raises herein: whether Mrs. Zander's purported failure to file suit within FTCA's six-month statute of limitations time-bars her claim.

On June 24, 2011, the United States filed the instant Motion to Dismiss. Mot. Dismiss, Doc. No. 34. The United States urges the Court to dismiss Mrs. Zander's claim on two grounds: (1) Mrs. Zander failed to satisfy the preconditions to suit of Maryland's Health Care Malpractice Claims Act (“HCMCA”); and (2) Mrs. Zander filed suit outside of FTCA's six-month statute of limitations. Both grounds are meritorious.

II. STANDARD OF REVIEW

As a threshold matter, the Court must ascertain the appropriate standard of review. The Government first argues that Mrs. Zander's failure to comply with HCMCA serves as a basis for dismissal. HCMCA sets forth several prefiling requirements that plaintiffs must satisfy before they may assert medical malpractice claims. See infra Part III.A. A few authorities propose that courts properly analyze whether the failure to comply with such requirements warrants dismissal under Rule 12(b)(6). See Renn v. Bd. of Comm'rs of Charles Cnty., MD, 352 F.Supp.2d 599, 602 (D.Md.2005) (citation omitted) (“a prefiling requirement is most appropriately analyzed under Rule 12(b)(6) ... rather than as a lack of subject matter jurisdiction under Rule 12(b)(1)”); cf. Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860, 864–65 (1982) (holding that a plaintiff's failure to satisfy HCMCA's preconditions does not deprive trial courts of subject matter jurisdiction to hear and decide claims coming within the Act's purview).

The weight of the authority, however, indicates that courts properly analyze such arguments under Rule 12(b)(1). See Kerns v. United States, 585 F.3d 187, 194 (4th Cir.2009) (citing FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)) ...