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Frost v. Belcher

United States District Court, M.D. North Carolina

February 8, 2019

BRITTANY FROST, ADMINISTRATOR OF THE ESTATE OF CHRISTINA LYNN CECI, Plaintiff,
v.
VERNEE BELCHER, M.D., DUKE UNIVERSITY HEALTH SYSTEMS, INC., d/b/a DUKE MEDICINE and DUKE UNIVERSITY MEDICAL CENTER, and THE UNITED STATES OF AMERICA, Defendants.

          MEMORANDUM OPINION AND ORDER

          CATHERINE C. EAGLES, DISTRICT JUDGE.

         Plaintiff Brittany Frost is the administrator of the estate of Christina Lynn Ceci, who died in January 2015 after being treated by Lincoln Community Health Center, a federally supported health center. The Federal Tort Claims Act applies to her wrongful death claim against the United States, which is based on Lincoln's alleged medical negligence. Because Ms. Frost did not present her FTCA claim to the appropriate government agency within the FTCA's two-year statute of limitations, did not file her state lawsuit in time for the FTCA's savings clause to apply, and has not shown extraordinary circumstances that would merit equitable tolling, the Court will grant summary judgment in favor of the United States.

         I.

         Background and Facts

         After the United States moved to dismiss on statute of limitations grounds and once briefing was complete, the Court converted the motion to dismiss to a summary judgment motion pursuant to Rule 12(d) of the Federal Rules of Civil Procedure. See Doc. 19 at 2. The Court listed matters it understood to be undisputed and allowed the parties to submit any additional evidence or briefing necessary to supplement or dispute these matters. Id. at 2-5. Only Ms. Frost submitted additional briefing and evidence. Docs. 20-20-8. She did not dispute the Court's understanding except to submit a letter showing her first administrative claim was filed on July 3, 2017, and not July 10, 2017. See Doc. 20 at 4; Doc. 20-5 at 2 (July 3, 2017, letter to the United States Department of Health and Human Services). For purposes of this motion, the Court will use the date of on or about July 3, 2017. Ms. Frost otherwise supplemented the record with some additional facts, none of which the United States disputed.

         The record shows as follows:

1. Christina Lynn Ceci passed away on January 24, 2015, after receiving medical treatment at Lincoln. Doc. 4 at ¶¶ 3, 19-52.
2. An autopsy performed the next day indicated Ms. Ceci had various types of “thromboembolus” in multiple locations in her pulmonary artery. Doc. 4 at ¶¶ 99-100. Her death certificate lists her cause of death as “sudden cardiac death” and “acute pulmonary embolism.” Doc. 20-1 at 2.
3. The wrongful death claim arising out of Ms. Ceci's death accrued at the latest on or about January 25, 2015.
4. The statute of limitations in North Carolina for wrongful death due to medical malpractice is two years. See N.C. Gen. Stat. § 1-53.
5. In January 2017, the Superior Court gave Ms. Frost an extension until May 2017 to file a complaint in compliance with Rule 9(j) of the North Carolina Rules of Civil Procedure. See Doc. 16-2 at 2; Doc. 20-3 at 2.
6. On May 12, 2017, Ms. Frost filed a wrongful death claim in Durham County Superior Court against those who provided medical care to Ms. Ceci in the months before her death, including Lincoln Community Health Center, Inc. See Doc. 20-2 at 2.
7. On June 12, 2017, private counsel for Lincoln notified Ms. Frost, through her attorney, that Lincoln is a community health center covered by the Public Health Service Act and subject to the Federal Tort Claims Act. Doc. 20-4 at 16. Ms. Frost was unaware that the FTCA applied to Lincoln until Lincoln's counsel told her of this fact. See Doc. 20 at 3; Doc. 7-2 at 1-2.
8. On July 3, 2017, Ms. Frost filed an administrative claim with HHS based on Lincoln's allegedly negligent medical care of Ms. Ceci. Doc. 20-5 at 3.
9. The United States removed Ms. Frost's state court civil action to this Court in October 2017, asserting that Lincoln and its employees were covered under the Federal Tort Claims Act. See Notice of Removal, Frost v. Belcher, No. 1:17-cv-926, Doc. 1 at 2 (Oct. 13, 2017).
10. After substituting the United States for Lincoln as the appropriate defendant, see Order, Frost v. Belcher, No. 1:17-cv-926, Doc. 10 (Oct. 27, 2017) (Mag. J.), this Court granted the motion to dismiss the United States for lack of jurisdiction in December 2017 based on a failure to exhaust administrative remedies. Doc. 20-6 at 3.
11. After dismissing the claim against the United States, the Court remanded the case to state court. Order, Frost v. Belcher, No. ...

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