Miller v. Veterans Administration Medical Center

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Paul E. Miller
v. Civ. No. 23-cv-333-JL-AJ
Veterans Administration
Medical Center
REPORT AND RECOMMENDATION
Invoking the Federal Tort Claims Act (“FTCA”), Paul E.
Miller has sued the Veteran Administration (“VA”) Medical
Center, claiming he suffered ammonia poisoning while a patient
at the VA hospital in White River Junction, Vt. in 1996. See
Compl. (Doc. No. 1). The defendant has filed a motion for
summary judgment, which has been referred to the undersigned
Magistrate Judge for proposed findings of fact and a recommended
disposition. See LR 72.1. As explained more fully below, the
defendant’s motion should be granted because the statute of
limitations on Mr. Miler’s claim has expired.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “A genuine issue is one that could be resolved in
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favor of either party, and a material fact is one that has the
potential of affecting the outcome of the case.” Vera v. McHugh,
622 F.3d 17, 26 (1st Cir. 2010) (internal quotation omitted).
At the summary judgment stage, the moving party must
“assert the absence of a genuine issue of material fact and then
support that assertion by affidavits, admissions, or other
materials of evidentiary quality.” Mulvihill v. Top-Flite Golf
Co., 335 F.3d 15, 19 (1st Cir. 2003) (citing Quintero de
Quintero v. Aponte-Roque, 974 F.2d 226, 227-28 (1st Cir. 1992)).
Where the nonmovant bears the ultimate burden of proof, once the
movant has made the requisite showing, the nonmovant can no
longer “rely on an absence of competent evidence, but must
affirmatively point to specific facts that demonstrate the
existence of an authentic dispute.” Torres-Martínez v. P.R.
Dep't of Corr., 485 F.3d 19, 22 (1st Cir. 2007) (internal
quotation omitted). “Mere allegations, or conjecture unsupported
in the record, are insufficient to raise a genuine issue of
material fact.” August v. Offices Unlimited, Inc., 981 F.2d 576,
580 (1st Cir. 1992). In other words, if the nonmovant's evidence
is “merely colorable” or “not significantly probative, . . .
summary judgment may be granted.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986) (internal citations omitted).
As it is obligated to do in the summary judgment context,
the court “rehearse[s] the facts in the light most favorable to
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the nonmoving party . . ., consistent with record support[,] . .
. giv[ing] the nonmovant the benefit of all reasonable
inferences that those facts will bear.” Noviello v. City of
Boston, 398 F.3d 76, 81-82 (1st Cir. 2005) (internal citation
omitted).1
Background2
On December 6, 1996, Miller was admitted to the VA Medical
Center in White River Junction (“VAMC”) for mental health
concerns. Compl. Att. (Doc. No. 1-2) at 94. His medical history
included diagnoses of “paranoid schizophrenia, questionable
schizoaffective disorder, and bipolar affective disorder.” Id.
After his admission, Mr. Miller was found to be “irritable” and
“manic.” On December 10, 1996, he was treated with valproic
acid, a mood stabilizer and anti-seizure medication.2 Id. at 96.
His dose of valproic acid was gradually increased until on
December 19, 1996, when, after being more sedate and having
fewer complaints over the previous few days, he “exhibited an
1 Mr. Miller has not responded to the instant motion. The
court is nevertheless obligated to determine whether the
defendant has demonstrated its entitlement to summary judgment.
See Perez–Cordero v. Wal–Mart P.R., 440 F.3d 531, 533–34 (1st
Cir.2006).
2 Mr. Miller attached several hundred pages of medical
records to his complaint. See Compl. Att. (Doc. No. 1-2) at 8-
446. These records supply much of the factual narration
relevant to the court’s analysis of defendant’s motion. The
court limits its discussion of Mr. Miller’s medical history to
the time period surrounding his claim of ammonia poisoning.
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acute change in mental status” and became only minimally
responsive to stimuli. Id. Tests determined that he had a
“significantly elevated ammonia level,” which medical staff
believed resulted from the valproic acid causing a deficiency in
carnitine, an essential amino acid. Id. The valproic acid
treatment was discontinued and Mr. Miller’s ammonia-related
symptoms resolved. Id. He was ultimately discharged from VAMC
on January 17, 1997. Id. at 104.
Prior Proceedings
On June 30, 2021, Mr. Miller submitted a tort claim to the
VA seeking $5,000,000.01 in damages for injuries he alleged to
have result from treatment provided by VA doctors, one of which
was the coma and “ammonia poisoning” that resulted from his
treatment with valproic acid in 1996. Compl. Att. (Doc. No. 1-2)
at 326.3 The VA acknowledged receipt of the claim in a letter
dated July 28, 2021. Id. at 8. On April 4, 2022, the VA
notified Mr. Miller by certified mail that it had denied his
claim on the basis that the statute of limitations had run.
Def. Mot.; Ex. A, Att. 1 (Doc. No. 3-3). The VA also explained
that if Mr. Miller was dissatisfied with the denial, he could
file a suit for review in federal district court, and that any
3 Mr. Miler has raised only the valproic acid-related claim
in this lawsuit.
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such suit must be initiated within six months of the date of the
denial. Id.
The record suggests that Mr. Miller received the April 4,
2022 denial on or before April 18, 2022, as he sent an e-mail
that day contesting certain aspects of the letter to the Torts
Law Group section of the VA Office of General Counsel. Def.
Mot.; Ex. A, Att. 2 (Doc. No 3-4).
On June 28, 2023, Mr. Miller commenced this lawsuit. He
seeks $2,000,000 in damages resulting from his valproic acid
treatment in 1996.
Discussion
The defendant’s sole basis for dismissal is that Mr. Miller
did not file his complaint within the two-year limitations
period prescribed by the FTCA. The court agrees.
“Federal courts lack jurisdiction over claims against the
United States unless the Government has waived its sovereign
immunity.” Sanchez v. United States, 740 F.3d 47, 50 (1st Cir.
2014) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994)).
The FTCA serves as a limited waiver of that immunity for torts
committed by Government employees acting within the scope of
their employment “under circumstances where the United States,
if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1).
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Under the FTCA, a claim is “forever barred unless it is
presented in writing to the appropriate Federal agency within
two years after such claim accrues or unless action is begun
within six months after the date of mailing.” Id. § 2401(b). The
First Circuit Court of Appeals reads this language to impose two
contingent deadlines upon a claimant: first, that the claimant
file a claim with the appropriate agency within two years of the
date of accrual; and second, that the claimant file an action in
court within six months of the date the agency denies that
claim. See Sanchez, 740 F.3d at 50; see also id. at n. 6
(discussing the exhaustion requirements under the FTCA).
A cause of action generally accrues under the FTCA at the
time a plaintiff is injured. Id. at 52 (citing Donahue v. United
States, 634 F. 3d 615, 623 (1st Cir. 2011)). When, as here, a
plaintiff brings an FTCA claim for medical malpractice, the
Supreme Court has held that accrual may be delayed under the
“discovery rule” exception. See United States v. Kubrick, 444
U.S. 111, 122–23 (1979). Under this exception, a claim does not
accrue until a plaintiff discovers, or in the exercise of
reasonable diligence should have discovered, both that he is
injured, and that the Government was the probable cause of that
injury. See Sanchez, 740 F.3d at 52; Gonzalez, 284 F.3d at 288–
89. This is an objective standard. Id. The plaintiff need not
know that the injury was negligently caused. Gonzalez, 284 F.3d
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at 289 (citing Kubrick, 444 U.S. at 124). Nor need he know the
full extent of his injury. Id. (citing Marrapese v. Rhode
Island, 749 F.2d 934, 940 n.10 (1st Cir. 1984)). “Once a
plaintiff knows of the injury and its probable cause, he bears
the responsibility of inquiring among the medical and legal
communities about whether he was wronged and should take legal
action.” Sanchez, 740 F.3d at 52 (quoting Gonzalez, 284 F.3d at
289).
Here, Mr. Miller’s FTCA claim violates both “contingent
deadlines” recognized by the Court of Appeals in Sanchez. Mr.
Miller’s medical records leave no dispute that he was injured in
December 1996, twenty-five years before he filed his FTCA claim.
Nor can he claim protection from the discovery rule, as
correspondence between Mr. Miller and the VA in 1999 refer to
his “ammonia poisoning appeal,” conclusively establishing that
he was aware of his injury and that the VA was the probable
cause of the injury by that time. Compl. Att. (Doc. 1-3) at 80.
Moreover, even if he could find some relief in the discovery
rule, Mr. Miller commenced this action on June 28, 2023, well
beyond the six-month deadline for seeking relief from the VA’s
April 2022 denial of his claim. As there is no genuine issue of
material fact regarding the timeliness of Mr. Miller’s lawsuit,
the defendant’s motion for summary judgment should be granted.
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Conclusion
Based on the foregoing, defendant’s motion for summary
judgment (Doc. No. 3) should be granted. Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The
fourteen-day period may be extended upon motion. Only those
issues raised in the objection(s) to this Report and
Recommendation are subject to review in the district court. See
Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 564
(1st Cir. 2010). Any issues not preserved by such objection(s)
are precluded on appeal. See id. Failure to file any objections
within the specified time waives the right to appeal the
district court's Order. See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
_____________________________
Andrea K. Johnstone
United States Magistrate Judge
November 20, 2023
cc: Paul E. Miller, pro se
Anna Dronzek, AUSA
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