MEMORANDUM-DECISION AND ORDER*fn1
The following is a summary of the pertinent facts.
Plaintiff Bernard Jackson and Plaintiff Gloria Jackson, husband and wife, bring this action against the Defendant United States of America ("Defendant") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., alleging negligence and medical malpractice on the part of medical personnel associated with the Bath Veterans Administration Hospital in Bath, New York - under the United States Department of Veterans Affairs ("VA"). See Complaint (Dkt. No.1).
After a car accident in April 1999, Plaintiff Bernard Jackson, an honorably discharged former member of the United States Armed Forces, presented with an "unstable neck fracture of C1 on C2." See Complaint (Dkt. No. 1) at ¶¶ 7, 12-13. On June 21, 1999, Dr. Jodie Levitt, a surgeon at Robert Packer Hospital in Sayre, Pennsylvania, performed surgery, including "a high cervical fusion with autologous bone graft from the left posterior iliac crest." Id. at ¶ 14-15. Then, on June 29, 1999, Plaintiff Bernard Jackson was transferred to the Bath VA Hospital for follow-up care, and he remained as an admitted patient there from June 29, 1999, until September 11, 1999. Id. at 16-17; B. Jackson Aff. (Dkt. No. 11, Attach. 2) at ¶ 4.
Plaintiff Bernard Jackson complained to VA hospital doctors, on several different occasions, of illness and discomfort, including, inter alia, weakness, dizziness, numbness in his left arm, headache and neck ache. Complaint (Dkt. No. 1) at ¶¶ 18-19, 23. X-rays taken July 30, 1999, showed "cervical changes at C1 and C2, and degenerative changes at C5-C6"; in September 1999 a nurse noted Plaintiff Bernard Jackson had been suffering numbness and coldness in his left hand; and evaluations by another VA doctor recommended therapy after finding arthritis, neuropathy and muscle weakness. Id. at ¶¶ 24-28.
Plaintiff was discharged on September 11, 1999, under an "irregular release" at the recommendation of a physician at the Bath VA hospital, because, inter alia, Plaintiff had been spending inordinate amounts of time off of the ward. Id. at ¶¶ 29-30. On October 5, 1999, Plaintiff was diagnosed as having an infection at the graft site/location of surgery (C1-C2 of the cervical spine). Id. at ¶ 31. Plaintiff claims, inter alia, that "as a result of the aforesaid negligence and medical malpractice, the plaintiff has been caused to suffer the condition of high cervical myelopathy due to subluxation of C1 on C2, and that condition will be permanent." Id. at ¶ 37. Plaintiff Bernard Jackson alleges that Dr. Levitt informed him that "the cervical myelopathy could have been avoided if [Plaintiff] was seen earlier during [Plaintiff's] admission to the Bath VA." B. Jackson Aff. (Dkt. No. 11, Attach. 2) at ¶ 5.
Plaintiff Bernard Jackson claims that, in the year 2000, he contacted the VA "to make a claim for compensation benefits for cervical myelopathy due to lack of treatment at the Bath VA. I was subsequently given a form to file with the Bath VA for compensation benefits. I was never informed about the existence of the Federal Tort Claims Act. In 2000, I did not know what the Federal Tort Claims Act was. I also had no knowledge of the SF95 form." Id. at ¶ 6; see also id. at ¶ 9. Plaintiff filed his claim for benefits in September 2000, and received a response from the VA, dated October 16, 2000, acknowledging the claim and requesting additional information. Id. at ¶ 7; Plntf's Ex. (Dkt. No. 11, Attach. 3). Plaintiff claims that the VA has not paid him compensation benefits. See B. Jackson Aff. (Dkt. No. 11, Attach. 2) at ¶ 7.
In 2002, Plaintiffs met with the law firm of Rosenblum, Ronan, Kessler & Sarachan, LLP, in Albany, New York, at which time that firm informed Plaintiffs about the FTCA and SF95, and referred them to the law firm of O'Connor, O'Connor, Bresee & First, P.C., Plaintiff's present counsel. Id. at ¶ 8. After meeting with the O'Connor law firm, Plaintiff Bernard Jackson filed a SF95 form with the VA on August 15, 2002,*fn2 making a claim under the FTCA for malpractice, and seeking total damages of fifteen million dollars ($15,000,000.00). Id.; Plntf's Ex. (Dkt. No. 11, Attach. 4).*fn3 The VA considered Plaintiff Bernard Jackson's SF95 and FTCA claim, and rejected it as being untimely under the statute in a letter dated December 13, 2004. See Letter Decision from VA (Dkt. No. 10, Attach. 5). Plaintiffs thereafter filed this lawsuit.
Defendant has now filed a Motion (Dkt. No. 10) to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, claiming that Plaintiffs' failure to file the SF95 and FTCA claim administratively with the VA within the statutory two-year period has forever barred the claim, and has therefore also divested this Court of jurisdiction. Plaintiffs have filed a response opposing the Motion (Dkt. No. 11), and Defendant has filed a Reply (Dkt. No. 12). For the following reasons, Defendant's Motion is granted in part and denied in part.
Federal Rule of Civil Procedure 12(b) provides, in relevant part: How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option ...