12-3713-cv
Phillips v. Generations Family Health Center
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
28th day of June, two thousand thirteen.
Present:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER, JR.,
Circuit Judges,
MIRIAM GOLDMAN CEDARBAUM,
District Judge.*
________________________________________________
CHRISTOPHER PHILLIPS, Administrator for the
Estate of Karen Cato,
Plaintiff-Appellant,
v. No. 12-3713-cv
GENERATIONS FAMILY HEALTH CENTER,
Defendant-Appellee.
________________________________________________
*
The Honorable Miriam Goldman Cedarbaum, of the United States District Court for
the Southern District of New York, sitting by designation.
For Plaintiff-Appellant: GERHARDT M. NIELSEN, Pegalis & Erickson, LLC, Lake
Success, NY (Vincent M. DeAngelo, Offices of Vincent
DeAngelo, LLC, Weatogue, CT, on the brief).
For Defendant-Appellee: LAUREN M. NASH (David C. Nelson & Sandra S. Glover, on
the brief), Assistant United States Attorneys for David B. Fein,
United States Attorney for the District of Connecticut, New
Haven, CT.
Appeal from the United States District Court for the District of Connecticut
(Bryant, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is VACATED and
REMANDED.1
Plaintiff-Appellant Christopher Phillips appeals from an August 20, 2012, judgment of
the United States District Court for the District of Connecticut (Bryant, J.), which dismissed
Phillips’s tort claim for lack of subject matter jurisdiction. Phillips, as the administrator of
Karen Cato’s estate, sued Generations Family Health Center (“Generations”) in Connecticut
state court, alleging that the defendant negligently failed to timely diagnose the colon cancer that
caused Cato’s death. Generations, however, receives federal funding under the Public Health
Service Act and has been “deemed” a federal employee by the Department of Health and Human
Services (“HHS”). See 42 U.S.C. § 233(g)-(n). In other words, Phillips’s tort suit against
Generations was in effect a suit against the United States. The case was accordingly removed to
1
Although we agree with the district court concerning the issues discussed in this
summary order, we vacate and remand for the reasons discussed in a separate Opinion filed
simultaneously with this order.
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federal court, and the district court concluded that Phillips had failed to file a timely
administrative claim with HHS as required by the Federal Tort Claims Act (“FTCA”).
Phillips contends that the district court should have dismissed his claim without prejudice
and granted him leave to file an administrative claim with HHS because he is eligible to take
advantage of the savings clause of the so-called Westfall Act. Specifically, he argues that the
district court erred in determining the date of accrual for his claim and in determining the date on
which his Connecticut state court action commenced. For the reasons explained below, we reject
these arguments. He alternatively contends that the district court should have equitably tolled
the statute of limitations. We address this argument in a separate Opinion filed simultaneously
with this Summary Order.
Under the Westfall Act, where a plaintiff has mistakenly filed his or her tort suit against a
private party instead of the federal government, an administrative claim filed after the federal
government has been substituted as the proper party “shall be deemed to be timely presented . . .
if . . . the claim would have been timely [under the FTCA’s two-year statute of limitations] had it
been filed on the date the underlying civil action was commenced.” 28 U.S.C. § 2679(d)(5). As
a practical matter, if the savings clause applies, the district court dismisses the plaintiff’s suit
without prejudice and grants the plaintiff leave to file a claim with the appropriate agency. See
id. The district court here determined that Phillips did not meet the requirements of the savings
clause and dismissed the lawsuit with prejudice.
Phillips first argues that his state law action was “commenced” within the FTCA’s two-
year statute of limitations because the limitations period did not begin to run until mid-July of
2009 (i.e., less than two years before Phillips filed his “underlying civil action” in Connecticut
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on June 30, 2011). We agree with the district court, however, that the claim accrued at the latest
on April 27, 2009 when Phillips first consulted an attorney about the possibility of legal action.
Under the FTCA, a claim accrues “when the plaintiff knows, or should know, enough of
the critical facts of the injury and causation to protect himself by seeking legal advice.”
Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998) (internal quotation marks omitted).
This “is not an exacting requirement,” id., and merely requires that the plaintiff is “told of or
ha[s] reason to suspect that the injury . . . suffered related in some way to the medical treatment .
. . received,” A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 142 (2d Cir. 2011) (quoting
Valdez ex rel. Donely v. United States, 518 F.3d 173, 177, 180 (2d Cir. 2008) (internal alteration
omitted)). In A.Q.C., we recently held that a plaintiff’s medical malpractice claim accrued at the
latest when she consulted with counsel because, at that point, it was “beyond question” that she
was “sufficiently on notice” of the need to protect her legal rights. Id. at 143. We did not adopt
a categorical rule that consultation with an attorney always triggers the limitations period,
specifically noting that “it is not the attorney consultation itself that triggers the accrual date, but
the acquisition . . . of sufficient information suggesting” the need to seek legal advice. Id.
However, we indicated that the plaintiff’s decision to seek legal advice for a potential
malpractice claim was strong evidence that the information possessed by the plaintiff at the time
was enough to alert her to the need to seek such advice. See id. at 141-42.
Here, the district court found that Phillips as well as Cato’s adult son, Zane Deshong,
both knew that Cato had consulted with an attorney about a possible malpractice claim and,
hence, that they had reason to suspect that Cato thought her injuries were related to her medical
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treatment.2 Phillips then acted upon this information by calling the same law firm that had
initially advised Cato. We see no error in the district court’s conclusion that this knowledge was
enough to suggest to Phillips and Deshong that they should “protect [themselves] by seeking
legal advice.” Kronisch, 150 F.3d at 121. “On this combination of facts, a reasonable person
was surely in a position to understand that it would make sense to inquire into the possibility that
the injury was [doctor-caused,] [a]nd indeed [Phillips and Deshong] drew exactly that
conclusion.” A.Q.C., 656 F.3d at 143.
Phillips contends that he did not have the requisite knowledge to trigger the statute of
limitations because he did not know in April of 2009 whether Generations’s actions were
negligent. However, the Supreme Court has explicitly held that the limitations period begins to
run in FTCA medical malpractice cases once the plaintiff knows enough to suspect that the
injury was caused by his treatment even if he or she has no reason to suspect that the treatment
was negligent. See United States v. Kubrick, 444 U.S. 111, 122-24 (1979). Therefore, Phillips’s
contention that his claim did not accrue until mid-July of 2009 is without merit.
Phillips alternatively argues that, even if the claim accrued on April 27, 2009, the
Westfall Act can still save his suit because he “commenced” his underlying state action on
2
Because Deshong did not submit an affidavit, there is no direct evidence that Deshong
knew by April 27, 2009, that his mother had met with a lawyer about a potential malpractice
claim. However, the district court did not clearly err in finding that Deshong knew about the
potential claim by that date given that Phillips explicitly informed his lawyer Gerhardt Nielsen
on April 27 that Deshong would call Nielsen for legal assistance. See Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000) (holding that a district court’s factual findings on a
motion to dismiss for lack of subject matter jurisdiction are reviewed for clear error); see also
Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (holding that courts on
motions to dismiss for lack of subject matter jurisdiction are not required to draw all inferences
in the plaintiff’s favor). Moreover, Phillips—not Deshong—is the plaintiff in this case, and
Phillips certainly knew that Cato had met with attorneys at Pegalis about a malpractice claim.
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March 31, 2011, when he filed a petition with the Connecticut trial court for an extension of the
state statute of limitations. This argument is also without merit, however. The Connecticut
statute allowing a party to file a petition for an extension makes clear that the petition does not
commence anything and merely allows a party to have an additional ninety days to make a
“reasonable inquiry” into whether there is a good faith belief to file suit. See Conn. Gen. Stat.
§ 52-190a(b). Indeed, Phillips’s petition itself notes that the defendant’s alleged actions “may
give rise to a claim” and that a claim “may be brought.” App’x at 17 (emphases added).
For the reasons stated herein, we agree with the district court that Phillips’s claim
accrued at the latest on April 27, 2009, and that his petition for an extension of time did not
“commence” his action for purposes of the Westfall Act. However, as explained in our separate
Opinion issued simultaneously with this Summary Order, we nonetheless VACATE and
REMAND the judgment of the district court on other grounds.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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