MEMORANDUM OPINION AND ORDER
Amit
P. Mehta, United States District Judge.
I.
Pro se
Plaintiff Reuel Jacques Abale Gnalega claims that, in January
2014, he suffered an electrocution injury during a nerve
conduction test performed by Dr. Michael Pfeiffer, a medical
provider employed by Defendant Washington Veterans Medical
Center (“VA”). See Am. Compl., ECF No. 3
[hereinafter Am. Compl.], at 1, 3-6.[1] Fairly construed, Plaintiff
advances a medical negligence claim against the United States
under the Federal Tort Claims Act
(“FTCA”).[2] To be timely, Plaintiff had to first
present this claim in writing to the VA “within two
years after such claim accrue[d].” 28 U.S.C. §
2401(b). There is no dispute that Plaintiff filed his
administrative claim with the VA on May 31, 2017, more than
one year after the two-year limitation expired, if measured
from the date of the nerve conduction injury. What the
parties dispute is when the claim accrued.
II.
The
Supreme Court's decision in United States v.
Kubrick is the starting point for the court's
analysis. See 444 U.S. 111 (1979). Like this case,
Kubrick was a medical malpractice case brought under
the FTCA. See Id. at 113-14. The Court of Appeals
had held that a plaintiff's claim does not begin to
accrue “until he knows or should suspect that the
doctor who caused the injury was legally blameworthy.”
Id. at 121. The Supreme Court rejected that
formulation, writing “[w]e . . . cannot hold that
Congress intended that ‘accrual' of a claim must
await awareness by the plaintiff that his injury was
negligently inflicted.” Id. at 123. Instead,
the Court explained, a plaintiff “armed with the facts
about the harm done to him” could “protect
himself by seeking advice in the medical and legal
community” to determine whether negligence was the
cause of his injury. Id. “To excuse him from
promptly doing so by postponing the accrual of his claim
would undermine the purpose of the limitations statute, which
is to require the reasonably diligent presentation of tort
claims against the Government.” Id. Thus, in
that case, the Court concluded that the plaintiff's cause
of action began to accrue at the time he “was aware of
his injury and its probable cause.” Id. at
357; accord Sexton v. United States, 832 F.2d 629,
633 (D.C. Cir. 1987) (“Even where the government
agents' negligence takes the form of omission, a
plaintiff's understanding of the basic nature of the
treatment should suffice to begin the statute running. If the
plaintiff knows these critical facts, he need only undertake
a reasonably diligent investigation to determine whether a
cause of action may lie.”).
Applying
the principles set forth in Kubrick, it is clear
that Plaintiff has pleaded himself out of a timely cause of
action. In his Amended Complaint, Plaintiff describes feeling
immediate, intense pain to his ankle area during the nerve
conduction test performed by Dr. Pfeiffer. See Am.
Compl. at 4 (alleging that “[a]s soon as the [n]erve
conduction test started, I jumped in pain and agony”;
asserting the testing “shocked me to so much incredible
pain I almost fell out of my chair”; averring the
“second part of the test went unhinged”; and
stating that “I was in traumatic pain from where [Dr.
Pfeiffer] had put the electricity on my ankle”). That
pain continued unabated in the ensuing days, causing
Plaintiff to report to the emergency room. See Id.
at 5 (alleging that he went to the emergency room “a
few days later” because he “couldn't feel
[his] left leg” and “felt as though [he] was
having a heart attack”). At the emergency room,
Plaintiff apparently noticed for the first time a “bump
on [his] left ankle exactly where [Dr. Pfeiffer] had put the
machine during the nerve conduction test.” Id.
at 5-6. He then insisted on receiving an ultrasound, which
Plaintiff describes as “vivid[ly]” showing a
contrast between his left and right legs. Id. at 6.
Additionally, Plaintiff admits to receiving follow-up
treatment and care from specialists. See Id. at 7-8.
And, notably, based on his experience, Plaintiff warned a
friend not to undergo a nerve conduction test. See
Id. at 5 (“I had no idea what had just transpired
even telling one of my friend[s] later who was scheduled for
one not to do it because it was so painful.”).
As the
foregoing allegations demonstrate, Plaintiff's cause of
action accrued if not on the day Dr. Pfeiffer administered
the nerve conduction test in January 2014, then certainly
shortly thereafter. Plaintiff knew the “critical
facts” that would put him on notice of a claim.
Sexton, 832 F.2d at 633. He admits as much in his
opposition:
In my case luckily, the first signs showed after a few days
after [Dr. Pfeiffer's] intervention . . . The only person
that puts himself around my left ankle (dorsal) with an
electrical device is [Dr. Pfeiffer] a few days before the
symptoms were noted for the first time ever in my left ankle
. . . The first sign of an ankle bump is days after [Dr.
Pfeiffer performed the] EMG test.
Pl.'s
Opp'n to Def.'s Mot. to Dismiss, ECF No. 19
[hereinafter Pl.'s Opp'n], at 12-13. Thus, by his own
admission, within days Plaintiff knew enough about the injury
and its cause to put him on notice about a potential claim.
Yet, Plaintiff waited more than three years after suffering
his injury to file his administrative claim with the VA.
See Am. Compl. at 19 (filing of first claim on May
31, 2017). This action is therefore untimely.
III.
Plaintiff
makes two arguments to avoid this conclusion. First, he
argues that he did not discover the actual cause of his
injury until much later (though he does not say precisely
when). Plaintiff states that, even though he experienced
immediate pain from the nerve conduction test, he remained
uncertain as to whether the cause of his ankle injury was an
earlier cortisone injection to his lumbar area or the nerve
conduction test, id. at 3, 6, 47, and that he
learned that the test was the reason for his pain only after
speaking to a personal injury lawyer, Compl., ECF No. 1, at
15. Thus, he suggests, his claim did not accrue until he had
certainty that Dr. Pfeiffer had caused his injury.
See Pl.'s Opp'n at 15-17. But the Supreme
Court in Kubrick did not hold that a plaintiff must
have absolute certainty as to causation before his claim
starts to accrue. Rather, he need only know “the facts
about the harm done to him, ” for it is at that point
that the law places upon him the burden of undertaking a
reasonably diligent investigation to determine if he has a
cause of action. Kubrick, 444 U.S. at 123. For that
reason, the clock started to run on the plaintiff in
Kubrick when he “was aware of his injury and
its probable cause.” Id. at 118
(emphasis added). Accordingly, in this case, it matters not
when he was advised by a lawyer that Dr. Pfeiffer had caused
his injury. Rather, for accrual purposes what matters is that
Plaintiff had possession of “the facts about the harm
done to him, ” if not during the nerve conduction test
itself, then shortly thereafter.
Next,
Plaintiff appears to assert that the limitations period
remained tolled until March 2016 under the “continuing
course of treatment” doctrine. See Pl.'s
Request for Judgment, ECF No. 24, at 11.[3] That equitable
doctrine provides that “when there has been a course of
continuous medical treatment, a cause of action for
malpractice accrues at the end of the continuous treatment if
the treatment has been for the same illness or injury out of
which the claim for malpractice arose.” Page v.
United States, 729 F.2d 818, 823 n.36 (D.C. Cir. 1984)
(citation omitted).
Plaintiff
has not, however, shown that the continuous-treatment
doctrine plausibly applies to the facts alleged. See
Bayer v. U.S. Dep't of Treasury, 956 F.2d 330, 333
(D.C. Cir. 1992) (stating that the plaintiff bears the burden
of pleading that the court should exercise its equitable
power to toll a limitations period). Courts have held that
the continuous-treatment doctrine tolls the limitation period
only “until the doctor ceases to treat the patient in
the specific matter at hand.” Patteson v.
AstraZeneca, LP, 876 F.Supp.2d 27, 37 (D.D.C. 2012)
(quoting Anderson v. George, 717 A.2d 876, 878 (D.C.
1998)). Courts ordinarily do not permit the
continuous-treatment doctrine to encompass care from
succeeding government physicians. See Page, 729 F.2d
at 823 n.36 (stating that “‘treatment from
succeeding government physicians' does not interrupt the
running of the limitation when the personal relationship with
the physician charged with malpractice has ended and that
physician ‘is not claimed to have acted in direct
concert with the succeeding physicians'”) (quoting
Brown v. United States, 353 F.2d 578, 580 (9th Cir.
1965)); see also Miller v. United States, 932 F.2d
301, 305 (4th Cir. 1991) (recognizing that “the
rationale for this tolling theory only permits its
application when the treatment at issue is for the same
problem and by the same doctor, or that doctor's
associates or other doctors operating under his
direction”). Courts impose this limitation
because the doctrine itself is premised on the unique
physician-patient relationship and the accompanying notion
that it would be “absurd” to require a wronged
patient to interrupt corrective efforts from the provider who
committed the wrong by filing a lawsuit. See Page,
729 F.2d at 823 n.36 (citation omitted); Patteson,
876 F.Supp.2d at 37-38 (calling it “ludicrous to expect
a patient to interrupt a course of treatment by suing the
delinquent doctor”) (internal quotation marks and
citation omitted); cf. Wehrman v. United States, 830
F.2d 1480, 1485 (8th Cir. 1987) (finding continuous-treatment
doctrine applicable where the plaintiff alleged
“continuing negligence” on the part of multiple
VA doctors at the same medical facility who “continued
him on the same treatment” and failed to recommend an
alternative approach). Further, a limitation period is not
tolled by “merely intermittent medical services”
or “merely occasional hospital visits at substantial
intervals.” Page, 729 F.2d at 823 n.36
(citations omitted). Thus, once the “unique”
relationship ends and the particular treatment ceases, the
limitations period starts to run.
Here,
according to the complaint, Plaintiff's relationship with
Dr. Pfeiffer ended almost immediately, and he was subjected
to no further nerve conduction testing thereafter. Plaintiff
avers that he came to the VA in January 2014 because of
radiating back pain. See Am. Compl. at 1-2. It was
in connection with that medical problem that Dr. Pfeiffer
administered the nerve conduction test. Id. at 3-4.
Following the test, Plaintiff alleges, Dr. Pfeiffer
“seemed upset at me at the fact that I had been in so
much pain during the test, he wouldn't answer me after
the test and he disappeared.” Id. at
5 (emphasis added). Plaintiff alleges no further treatment or
care from Dr. Pfeiffer. Nor does he allege any treatment from
physicians acting at the direction of Dr. Pfeiffer. Rather,
Plaintiff next received treatment in the emergency room at
the VA from a Dr. David Luse, who advised Plaintiff to rest
his leg and take Ibuprofen. Id. at 7. Dr. Luse also
referred Plaintiff to “one specialist then to another,
” none of whom provided “ultimate
supervision.” Id. at 7-8. Moreover, medical
records that Plaintiff attaches to his complaint show that
other physicians, possibly at the VA, as of November 2014,
diagnosed and recommended treatment for Plaintiff's left
foot pain. See Id. at 42 (diagnosing possible
“partial thickness tear”), 43 (recommending plan
to place Plaintiff in a walking boot and refer him to a foot
and ankle specialist), 45 (diagnosing possible edema). As
these facts demonstrate, the “unique”
relationship that Plaintiff had with Dr. Pfeiffer did not
extend beyond January 2014 to toll the limitations period;
nor did treatment through nerve conduction testing continue
thereafter. Thus, what Plaintiff asserts is a specific claim
of negligence against a specific doctor on a specific date.
See Ciccarone v. United States, 486 F.2d 253, 256-57
(3d Cir. 1973) (rejecting, the application of the
continuous-treatment doctrine where “appellant was
aware of the deterioration in his health immediately
following the methylene blue dye procedure” ...