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L.C.H., A Minor, By and Through His Father and Next Friend v. United States of America

December 14, 2012

L.C.H., A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, LARRY HAGAN, PLAINTIFF, AND
LARRY HAGAN, INDIVIDUALLY, PLAINTIFF,
v.
UNITED STATES OF AMERICA,
DEFENDANT.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

MEMORANDUM OPINION*fn1

Plaintiffs Larry Hagan and his minor son L.C.H. bring this action for medical malpractice under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80 ("FTCA"). They claim that inadequate care L.C.H. received shortly after his birth led to hypoxic ischemic encephalopathy, which results from lack of oxygen to the brain. Defendant moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). (Dkt. No. 10). Because Plaintiffs filed their complaint more than two years after their claim accrued, under the FTCA this Court does not have subject matter jurisdiction. Accordingly, Plaintiffs' complaint must be dismissed.

I. FACTUAL SUMMARY

The claims in this case arise from the treatment of L.C.H. shortly after his birth around April 2007. L.C.H. was about six months gestational age when he was born at the National Naval Medical Center ("NNMC"). (Dkt. No. 1 at ¶ 16). He weighed less than two pounds. He remained in the hospital for about 10 weeks after his birth, in part because he had "developed bilious stomach residual contents and had dilated loops of bowel." (Id. ¶ 19). While at home around August 15, 2007, L.C.H. experienced symptoms including "forceful emesis, numerous episodes of vomiting, distressful crying, and reported refusal of food," and L.C.H.'s father Larry Hagan ("Hagan") took him to Walter Reed Army Medical Center. (Id. ¶ 23). Doctors took several actions to determine what was wrong with L.C.H., and noted certain abnormalities. However they canceled a planned test and noted at L.C.H.'s discharge that "bowel obstruction, volvulus and intermittent bowel obstruction ha[ve] been ruled out." (Id. ¶¶ 32-38). L.C.H. had multiple follow-up visits over the next weeks at NNMC. During this time, he was diagnosed with infantile colic, and doctors also noted abdominal tenderness. (Id. ¶¶ 42-55).

During a chaotic few days in September 2007, L.C.H. had a stroke that led to his current condition. On a visit to DeWitt Army Community Hospital, doctors told Hagan to take L.C.H. to the emergency department at NNMC. (Id. ¶ 56). A doctor at NNMC reported a concern of a bowel obstruction. (Id. ¶ 64). L.C.H. was taken by helicopter to Walter Reed for surgical evaluation. (Id. ¶ 66). After evaluation that Hagan contends was unacceptably long given the situation, L.C.H. was transferred to Children's National Medical Center. Hagan claims that the method of transfer to Children's was inadequate. (See id. ¶¶ 89-91). During the transfer L.C.H. experienced decreased oxygen saturation, and "[i]t was likely during this period of low oxygen saturation and low blood pressure that L.C.H. experienced a hypoxic ischemic insult, i.e. a stroke." (Dkt. No. 10, at 3 (footnote omitted); see also Dkt. No. 1 at ¶ 86). Hagan was told of the stroke in September 2007. (Dkt. No. 14, at 8). Doctors performed surgery at Children's, "where a bowel obstruction was identified and a large portion of necrotic small bowel was removed." (Dkt. No. 1 at ¶ 92). A second surgery two days later removed additional small bowel. (Id. ¶¶ 95-99). Two days after that, September 11, 2007, L.C.H. suffered a seizure. (Dkt. No. 18, at A10).*fn2 Tests that day revealed "bilateral-parietal occipital infarcts as well as bilateral temporal lobes infarcts"; an infarct is a "localized area of tissue death caused by an interruption in the blood supply to the area." (Id. at 3-4 and n.3). Defendant terms the test results as "reveal[ing] significant areas of brain tissue death." (Dkt. No. 15, at 11).

What is critical here are the neurologic consequences from these events, and when Hagan learned of them. According to the Complaint, "[p]hysicians at NNMC and/or Walter Reed advised Mr. Hagan that L.C.H. had not suffered any neurologic consequences from the events of September 2007. Despite this assurance from Defendant, L.C.H. had suffered a hypoxic ischemic insult. It remained undiagnosed until March of 2009." (Dkt. No. 1 at ¶¶ 101-02). But, according to a doctor who spoke with L.C.H.'s parents on September 12, 2007, as of that date they "understand the severity of [L.C.H.'s] neurological and intestinal injuries." (Dkt. No. 18, at A13; see also Dkt. No. 14, at 8). A "Consultation Request and Report" from Children's dated September 26, 2007 noted "head shows stable, right parietal encephalomalacia. CT head (9/11) edema to bilateral and temporal-parietal lobes and hypodensity c/w watershed infarcts." (Dkt. No. 18, at A15). Encephalomalacia is a sign of brain injury. (See Dkt. No. 1 at ¶ 106). Hagan states "there is no evidence before this Court that Larry Hagan was aware of the content of the September 26, 2007 consultation report let alone any indicia that if in fact he had seen the report that he would have understood that it signified permanent injury for L.C.H." (Dkt. No. 14, at 16-17).

In October 2007, Hagan and his then-wife*fn3 "expressed concern about neuro C/S and the need to repeat CT and MRI scans due to the stroke L.C.H. had in the PICU." (Dkt. No. 18 at A18). A December 2007 record from a visit for "screening mental/developmental disorders" noted "delayed milestones." (Dkt. No. 14 at A5). A record dated January 2008 from NNMC noted an abnormality of appearance of L.C.H.'s head and delayed milestones, and referenced a need to contact the county's Early Intervention services. (Id. at A10-11). In February 2008 L.C.H. had his first appointment in the High Risk Clinic at NNMC because "he was a high risk infant for developmental delays." (Dkt. No. 18 at A21). A record from February 2008 stated the reason for L.C.H.'s visit was "delayed developmental milestones gross motor" and recommends a follow up in the High Risk Clinic at NNMC. (Dkt. No. 14 at A14). It also recommended a weekly physical therapy/occupational therapy session. (Id. at A17). An April 2008 record noted "delayed developmental milestones gross motor." (Id. at A20). Around July 25, 2008 L.C.H. "was noted to not progress at the same rate as a typical child and not as fast as expected." (Id. at A22).*fn4 A February 20, 2009 MRI revealed "extensive areas of gliosis and encephalomalacia."

(Dkt. No. 1 at ¶ 105). Hagan claims he "did not know of this finding nor understand its impact on L.C.H. until 2010." (Dkt. No. 14, at 13). According to the administrative claims filed by Hagan and L.C.H., when L.C.H. was diagnosed with hypoxic ischemic encephalopathy around March 2009, "imaging studies in 2009 did not reveal any new lesions when compared with the brain imaging studies performed in September 2007." (Dkt. No. 18 at A31, A38).

Plaintiffs filed a written claim with the government around July 23, 2010 (id. at A23), and filed their Complaint with this Court on June 6, 2012. (Dkt. No. 1). Plaintiffs' Complaint contains two counts: Count I is titled "Medical Malpractice-Negligence," while Count II is for Hagan's "services and expenses" for L.C.H. Plaintiffs are seeking $50,000,000 in damages.

II. DEFENDANT'S MOTION TO DISMISS

A. Rule 12(b)(1) Standard

Federal courts can only hear claims over which they have subject matter jurisdiction. Al-Zahrani v. Rodriguez, 669 F.3d 315, 317-18 (D.C. Cir. 2012). Because standing is "an essential and unchanging part of the case-or-controversy requirement of Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), finding that a plaintiff has standing is a necessary "predicate to any exercise of [the Court's] jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc). The party seeking to invoke the court's jurisdiction bears the burden of establishing subject matter jurisdiction. U.S. Ecology, Inc. v. Dep't of the Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). Under Rule 12(b)(1), the Court may dispose ofthe motion on the basis of the complaint alone, or it may considermaterials beyond ...


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