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Carswell v. Childrens National Medical Center

September 17, 2002

KATHRYN CARSWELL, PERSONAL REPRESENTATIVE OF THE ESTATE OF ALEX CARSWELL, A MINOR, DECEASED PLAINTIFF,
v.
CHILDRENS NATIONAL MEDICAL CENTER, ET AL. DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge

MEMORANDUM OPINION

This case is before me for all purposes including trial. Currently ripe and ready for resolution is the United States' Notice of Filing of Defendant United States of America's Corrected Motion to Dismiss ("Defs Mot."). For the reasons indicated below, defendant's motion will be denied.

The Allegations of the Complaint

On April 23, 1993, Alex Carswell ("Alex"), an infant, underwent elective surgery at Children's National Medical Center. Complaint ("Compl.") ¶ 1. Alex died the next day. Compl. ¶ 8. Following Alex's death, an autopsy was performed by Dr. Roma Chandra, who concluded that Alex's death may have been caused by a genetic disorder. Compl. ¶ 10. Drs. A. Barry Belman and John Belot, who performed the surgery on Alex, told Alex's mother, Kathryn Carswell ("plaintiff"), that a genetic condition known as "fatty acid oxidation disorder" caused Alex's death. Compl. ¶ 11. However, on April 18, 1996, plaintiff learned that the genetic makeup of her and Alex's father made it "virtually

impossible" for Alex to have died from this disorder. Compl. ¶ 12. On April 23, 1996, plaintiff, in her capacity as personal representative of the estate of her deceased son, brought suit in D.C. Superior Court against Children's National Medical Center, Dr. Berlot, Dr. Belman, and Dr. "John Doe." The case was removed to this court with the United States being substituted for Dr. Belot as a defendant. It was then dismissed without prejudice as to the United States so that plaintiff could exhaust her administrative remedies.

On March 18, 1998, plaintiff filed a claim with Navy Legal Service in Norfolk, Virginia but the Navy Legal Service dismissed the claim on April 26, 1999. Plaintiff again filed suit in this court on October 18, 1999.

Defendant's Motion

Defendant United States moves to dismiss on the grounds that plaintiff did not file her administrative tort claim within two years of its accruing and for plaintiff's failure to comply with one of the late Judge Richey's orders.

The Motion Will Be Denied

The Federal Tort Claims Act provides:

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 or unless action is begun within six months after the date . . . of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C.A. § 2401(b)(1994).

Defendant may prevail only by establishing from the face of the complaint that this statute of limitations bars the action. Doe v. Dep't of Justice, 753 F.2d 1092, 1115 (D.C. Cir. 1985). Under the FTCA, a claim for negligence accrues "at the time the plaintiff discovers both his injury and its cause." Gabriel v. Corrections Corporation of America, 211 F.Supp.2d 132, 136 (D.D.C. 2002).

Plaintiff claims that she did not learn until April 18, 1996 that the original explanation given for Alex's death might not in fact be accurate:

On April 18, 1996, and after diligent investigation and testing, Kathryn Carswell learned, for the first time, that Belman's opinions, representations, and statements that Alex Carswell died from fatty acid oxidation disorder were not true . . . [and that] given the genetic make-up of Kathryn Carswell and Edwin Moloy, Alex's father, it was ...


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