United States District Court, District of Columbia
ROSEMARY M. COLLYER, District Judge.
Richard M. Gable, proceeding pro se, is a Vietnam War veteran who alleges medical malpractice and other injuries arising from his stay at a hospital operated by the Department of Veterans Affairs. Mr. Gable entered the hospital in January 2006 for what should have been routine knee replacement surgery. After he underwent the planned surgery, he contracted a staph infection that led to the amputation of his left leg on August 23, 2006 and further surgeries to clean up the amputation. Mr. Gable alleges the amputation was without his consent. The United States moves to dismiss in part, arguing that no injury to Mr. Gable prior to September 16, 2006 should be considered by the Court under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, that is, two years before Mr. Gable filed his administrative claim with the Veterans Administration on September 16, 2008. The United States also moves to dismiss Mr. Gable's allegations that the government violated Mr. Gable's constitutional rights under the Sixth Amendment and his rights under the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327.
This Court previously denied a defense motion to dismiss, finding that the facts were too uncertain to decide its merits. See Memorandum Opinion [Dkt. 18]; Order [Dkt. 19]. The government renews its motion to dismiss, limited to events prior to September 16, 2006.
The government correctly recites the strict two-year statute of limitations under the FTCA, 28 U.S.C. § 2401(b). "Section 2401(b)... is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims." United States v. Kubrick, 444 U.S. 111, 117 (1979). Under the FTCA, a claim accrues when the plaintiff "has discovered both his injury and its cause, " whether or not the plaintiff knows the injury was negligently inflicted. Id. at 119-122. The government contends "at least as to any injuries Plaintiff sustained at the VA Medical Center before September 16, 2006, Plaintiff [Gable] knew of them as soon as he sustained them." Mot. to Dismiss [Dkt. 44] at 5. From the distance of hindsight, the government is confident that long before September 16, 2006, Mr. Gable "knew (1) that he had not consented to the August 23, 2006 amputation of his left leg, (2) that he was not receiving his prescribed medications, and (3) that the hospital was not providing basic hygiene services." Id.
In support of his claims, Mr. Gable has argued in court at various times that he was heavily medicated for pain after surgery and therefore did not know immediately that his leg had been amputated, that he was not receiving necessary medications for other conditions, or that he was not being provided basic hygiene. Taking Mr. Gable at his word, as the Court is required to do on a motion to dismiss, the facts as to when Mr. Gable discovered his injuries cannot be determined on the present record. Without evidentiary support, the certainty of the government's statements ignores the possible aftermath of major surgery, especially on an older person with other illnesses.
All parties need discovery concerning Mr. Gable's surgery on August 23, 2006 and into whether Mr. Gable had the actual ability to have known of the loss of his leg and to have been reasonably diligent in complaining about it. Whether Mr. Gable was able to (a) agree to surgery or (b) assert his rights thereafter is unknown and subject to question.
For these reasons, the Court will grant in part and deny in part the Motion to Dismiss in Part. It will dismiss Mr. Gable's claim based on the Sixth Amendment because that Amendment guarantees certain rights to criminal defendants but does not apply to the allegations in the Complaint, which are all civil in nature. The Court will also dismiss Mr. Gable's claim under the ADA because the ADA does not apply to the federal government. The Court will otherwise ...