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Hagan v. United States

United States District Court, District of Columbia

August 15, 2017

LARRY HAGAN, et al., Plaintiffs,


          COLLEEN KOLLAR-KOTELLY United States District Judge

         These 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, [1] the relevant legal authorities, and the record as a whole, Plaintiffs' [50] Motion for Partial Summary Judgment is DENIED, and Defendant's [51] Motion for Summary Judgment is DENIED.[2]

         I. BACKGROUND

         A. Procedural History

         This 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).

         B. Factual Background

         L.C.H 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.

         At 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. ¶ 10.

         On 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).

         On 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 pressure.” Id.

         On 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. ¶ 9.

         On 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.

         “Infarction 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.

         L.C.H. 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 88-90.

         Shortly 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).

         On December 13, 2007, L.C.H. was seen for a primary care visit at NNMC. Pls.' Stmt. ¶ 30. Under an entry entitled “Stroke ...

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