United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY United States District Judge
consolidated cases emerge from alleged medical malpractice by
agents of the United States with respect to Plaintiff L.C.H.,
a minor, which allegedly resulted in a severe brain injury.
Plaintiffs Hagan and Wilson, the parents of L.C.H., seek
damages under the Federal Tort Claims Act
(“FTCA”) stemming from the alleged malpractice.
Pending before the Court are cross-motions for summary
judgment on the government's statute of limitations
defense. For the reasons detailed below, the Court concludes
that summary judgment in favor of either party is
unwarranted. A determination of when Plaintiffs became aware
of L.C.H.'s brain injury requires a weighing of the
evidence and the making of credibility determinations,
neither of which are appropriate on a motion for summary
judgment. Accordingly, upon consideration of the pleadings,
relevant legal authorities, and the record as a whole,
Plaintiffs'  Motion for Partial Summary Judgment is
DENIED, and Defendant's  Motion for
Summary Judgment is DENIED.
case was previously dismissed for lack of subject-matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), based on the running of the FTCA's statute of
limitations. See L.C.H. ex rel. Hagan v. United
States, No. 12-CV-916 RLW, 2012 WL 6570685, at *6
(D.D.C. Dec. 14, 2012) (Wilkins, J.). That dismissal under
Rule 12(b)(1) was vacated and remanded by the D.C. Circuit in
light of the Supreme Court's decision in United
States v. Kwai Fun Wong, 135 S.Ct. 1625 (2015), which
held that the FTCA's statute of limitations is not
jurisdictional. This Court subsequently denied
Defendant's motion to dismiss pursuant to Rule 12(b)(6),
and found that summary judgment on the government's
statute of limitations defense was premature because
discovery had yet to be taken. See Hagan v. United
States, 197 F.Supp.3d 30, 33 (D.D.C. 2016).
was born on April 3, 2007 at National Naval Medical Center
(“NNMC”) at a gestational age of under 25 weeks.
Pls.' Stmt. ¶ 1. L.C.H. was born with a number of
severe medical conditions, but was finally discharged on June
15, 2007. Id. ¶ 2. On September 8, 2007,
Plaintiffs took L.C.H. to the NNMC emergency department,
complaining of poor feeding. Id. ¶ 7. Later
that evening, L.C.H. was transferred by helicopter to Walter
Reed Army Medical Center (“Walter Reed”).
Id. ¶ 8.
Walter Reed, L.C.H. was initially observed on the regular
pediatric floor, but in the early morning of September 9,
2007, he was transferred to the Pediatric Intensive Care Unit
(“PICU”) because of his worsening mental and
respiratory status. Id. ¶ 10. Then, shortly
after 8:00 A.M., L.C.H. was transferred by ambulance to
Children's National Medical Center (“CNMC”).
Id. ¶ 13. The reason for the transfer is
disputed by the parties and is not relevant for purposes of
the pending motions. During the evening of the same day, an
exploratory laparotomy was performed on L.C.H., which
identified a bowel obstruction, and part of L.C.H.'s
bowel was removed. Id. ¶ 17; Def.'s Stmt.
September 10 and 11, 2007, L.C.H. suffered several seizures
and was given Ativan. Def.'s Stmt. ¶¶ 12-13.
Plaintiff Wilson observed one of these seizures, noting that
it appeared as a “little shaking of [L.C.H.'s] arm
. . . .” Def.'s Ex. C, at 74. Plaintiff Hagan was
told about a seizure, but did not observe it himself.
Def.'s Ex. G, at 112-13 (“[T]he doctor told me that
[L.C.H.] had a seizure right there in front of me, and I was
like, ‘Where?' That's all I remember about the
seizure conversation.”). In addition, both Plaintiff
Hagan and Plaintiff Wilson testified that they were told by
medical professionals at CNMC, within a few days of
L.C.H.'s admission to the hospital, that L.C.H. had
suffered a stroke. Def.'s Ex. C, at 86; Ex. G, at 122.
The exact timing of the stroke is disputed, but not the fact
that it occurred. Def.'s Resp. to Pls.' Stmt., ECF
No. 53-2, ¶ 19 (it is not “in dispute that L.C.H.
suffered a stroke between September 8-10, 2007”;
rather, the government disputes that the stroke occurred
during transport from Walter Reed to CNMC).
September 11, 2007, a CT scan was performed on L.C.H.
Def.'s Stmt. ¶ 17. The CT scan found “[e]dema
throughout the bilateral frontal and teporoparietal lobes of
unclear etiology, ” and “[s]uspect hypodensity in
watershed areas of the centrum semiovale and posterior basal
ganglia.” Def.'s Ex. H. According to the testimony
of Plaintiffs' expert, Dr. Michael Johnston, the finding
of “edema” means that “there is increased
water content of the brain, throughout the bilateral, frontal
and temporal lobes.” Def.'s Ex. E, at 45. The
second finding, of “hypodensity, ” “refers
to areas that may be lower density and could indicate some
reduction in blood flow to those areas.” Id.
at 46. The reference to the “watershed” is
“something that is . . . caused by reduction in blood
September 12, 2007, Plaintiffs were briefed by Dr. Catherine
Corriveau, the PICU attending at CNMC, and other unidentified
individuals from the Neurology Service and Social Work.
Def.'s Stmt. ¶ 20. The briefing occurred after
Plaintiff Hagan attempted to copy L.C.H.'s bedside charts
and records and expressed “the desire to review some of
[L.C.H.]'s clinical course over the past 24
[hours].” Id. ¶ 19 (citing Ex. J, CNMC
1895). Dr. Corriveau does not have an independent
recollection of what she told Plaintiffs on September 12, but
a contemporaneous note written by her states that the
“[p]arents understand the severity of [L.C.H.'s]
neurologic and intestinal injuries.” Def.'s Ex. J;
Ex. Q, at 31-34. According to Dr. Corriveau, “this note
and how [she] wrote it would reflect that we gave
[Plaintiffs] very grim news about both [L.C.H.'s]
neurologic status and the prognosis for recovery . . .
.” Def.'s Ex. Q, at 34. Plaintiff Hagan recalls
that on September 12, he and Plaintiff Wilson “met with
several doctors and other health care providers, ” who
told them that their “son was very sick, and that it
was too soon to predict the outcome and that ‘only time
will tell.'” Pls.' Ex. 12, Hagan Decl. ¶
September 17, 2007, an MRI was performed on L.C.H.'s
brain. Def.'s Stmt. ¶ 23. The MRI showed
“[d]iffuse cerebral edema/infarction.” Def.'s
Ex. M, CNMC 2155.
means stroke.” Def.'s Ex. E, at 48. A note by the
Social Work department, dated September 20, 2007, states that
the “[p]arents have met [with] neurology to discuss MRI
results.” Def.'s Ex. K, CNMC 1974. According to
Plaintiff Hagan, he and Plaintiff Wilson were “told
that a brain CT and brain MRI showed abnormalities but that
it was too soon to tell whether these abnormalities would
have any long-term effects on [their] son's
development.” Pls.' Ex. 16, Hagan Decl. ¶ 11.
was discharged from CNMC on November 1, 2007. The discharge
summary states the following:
NEURO: [L.C.H. was] noted to have B/L cerebral infarct and
secondary diffuse cerebral edema. Confirmed by CT scan.
[Patient] noted to have seizure activity and was started on
fosphenytoin and phenobarbital. [Seizure] activity stabilized
and phenobarbital wean initiated. Final dose of
phenobarb[ital] ¶ 7/28. Neurology following. PM&R
consulted as [patient] at risk for neuromotor dysfunction and
recommended follow up in neuro and PM&R clinic. PT/OT
consulted and [recommend] ¶ 3-5 days per week.
Def.'s Ex. N, CNMC 1847; Def.'s Stmt. ¶ 24.
Plaintiff Wilson testified that she remembered receiving the
discharge paperwork. Def.'s Ex. C, Wilson Depo., at
after the discharge, on November 21, Dr. Clarivet Torres
wrote a letter to Dr. Anthony Sandler after seeing L.C.H. at
the Intestinal Care Clinic at CNMC. Dr. Torres noted that
L.C.H. “had a rough postoperative stay with a prolonged
ventilation for about a week, and some brain hemorrhage,
but overcame all of these problems.” Pls.'
Ex. 24 (emphasis added).
December 13, 2007, L.C.H. was seen for a primary care visit
at NNMC. Pls.' Stmt. ¶ 30. Under an entry entitled