United States District Court, M.D. North Carolina
BRITTANY FROST, ADMINISTRATOR OF THE ESTATE OF CHRISTINA LYNN CECI, Plaintiff,
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.
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.
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
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. ...