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November 28, 2001


The opinion of the court was delivered by: Oberdorfer, District Judge.


This is a medical malpractice claim brought under the Federal Tort Claims Act by a mother and her son, alleging that negligent treatment by staff at Walter Reed Army Medical Center ("Walter Reed") during childbirth led to the son's brain damage and quadriplegia. Plaintiff Regina Ann Lewis was a sergeant in the United States Army when her son, Clayton Jamal Lewis, was born on October 14, 1993. The mother seeks compensatory and punitive damages on behalf of her son; she also seeks damages for herself based on the lifetime cost of caring for Clayton as well as loss of his services and companionship.

The government raises two arguments in its motion to dismiss: (1) the child's claims fall outside the Federal Tort Claims Act's two-year statute of limitations; and (2) the plaintiffs' claims are barred by the Feres doctrine, which precludes government liability for injuries incident to active duty military service. Clayton's claims are barred by the statute of limitations and will be dismissed on that basis. However, his claims, if timely, would not be barred by the Feres doctrine. As such, his mother's claim for medical expenses and economic loss, which are premised on negligent medical treatment provided to the child, withstand this motion to dismiss.

On the morning of October 13, 1993, a prenatal check-up at Walter Reed indicated Regina Lewis was suffering symptoms of pre-eclampsia, a pregnancy-related condition that can cause harm to the mother and/or child if left untreated. Symptoms had also been evident at an earlier checkup on September 27, 1993. Following the appointment on October 13, Regina Lewis was admitted to Walter Reed at approximately 11:00 AM. At the time, she was in the 37th week of pregnancy. Rather than immediately performing an emergency cesarean section operation, medical staff at Walter Reed administered pitocin (to induce labor) and magnesium sulfate and Labetalal (to reduce the mother's blood pressure). This course of treatment continued for twenty-nine hours before Clayton was delivered by emergency cesarean section at approximately 3:41 PM on October 14, 1993. Plaintiffs allege that Clayton's condition was not properly monitored prior to delivery, and emergency measures were not taken when he showed signs of prenatal distress, including hypoxia (decreased oxygen to the fetus) and a variable heart rate. Within twenty-four hours of birth, Clayton suffered a massive hemorrhage in the right hemisphere of his brain, causing brain damage and quadriplegia.

Statute of limitations

1. Regina Lewis

2. Clayton Lewis

The same two-year statute of limitations applies to claims brought on behalf of Clayton Lewis, although he is not entitled to the tolling provisions of the Soldiers and Sailors Civil Relief Act. The government argues the statute of limitations began to run for Clayton in October 1993, as his injuries were apparent almost immediately after birth. Plaintiffs do not dispute this, but claim the statute of limitation is tolled for Clayton's claims under doctrines of fraudulent concealment and continuous treatment at Walter Reed.

Fraudulent Concealment

A medical malpractice claim accrues under the Federal Tort Claims Act when a claimant first becomes aware of his or her of the injury and its cause. See United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Regina Lewis was undoubtedly aware of her son's injury shortly after his birth, but she claims to have been unaware of the precise cause. The claim for fraudulent concealment is based on the failure of Walter Reed staff to inform her that their negligent actions, rather than pre-eclampsia, may have been the cause of Clayton's injury.

Under District of Columbia law, that doctrine requires "something of an affirmative nature designed to prevent discovery of a cause of action." Cevenini v. Archbishop of Washington, 707 A.2d 768, 773-774 (D.C. 1998). Failure to disclose information does not rise to the level of fraudulent concealment. Id. at 774. More importantly, the representation allegedly made to Regina Lewis, even if erroneous, turns on a genuine question of medical causation rather than a desire to mislead the plaintiff.

Additionally, "[a]n act of fraudulent concealment by a defendant does not relieve a plaintiff of his independent duty to pursue his cause of action diligently. On the contrary, the case law makes clear that a claim of fraudulent concealment is available only to a plaintiff who has exercised due diligence in the pursuit of his cause." Cevenini, 707 A.2d at 774. Even if Walter Reed staff did fraudulently conceal the cause of Clayton's injury, plaintiffs' failure to exercise due diligence precludes equitable tolling of the statute of limitations. In this circuit, the statute of limitations for medical malpractice claims brought under the Federal Tort Claims Act begins to run "by the time a plaintiff has discovered both his injury and its cause, even though he is unaware that the harm was negligently inflicted." Sexton v. United States, 832 F.2d 629, 632 (D.C.Cir. 1987) (internal citations and quotations omitted). Under this standard, the plaintiffs were aware of both Clayton's injury and at least its general cause. "Armed with these facts, they could have sought advice that would have enabled them to evaluate the government's acts and omissions. As they failed to present a claim within two years, ...

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