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Gibbons v. D.O. Leonard Fronton and Sterling Medical Corporation

September 24, 2009


The opinion of the court was delivered by: Cedarbaum, J.


Plaintiff William Gibbons sues Dr. Leonard Fronton and Sterling Medical Corporation for medical malpractice, lack of informed consent and medical facility negligence. Defendants move to dismiss on the ground that the claims are barred by the applicable New York statute of limitations. An evidentiary hearing was held on March 10, 2009, on the issue of whether the statute of limitations should be equitably tolled.

Plaintiff moves under 28 U.S.C. § 1406(a) to transfer the case to the Southern District of Florida, where he argues that his claim would not be time-barred under Florida's longer statute of limitations. For the reasons set forth below, plaintiff's motion to transfer the case to the Southern District of Florida is granted. In light of the transfer, defendants' motion to dismiss for failure to meet the statute of limitations in New York is moot.


I. Gibbons is Treated at the Deerfield Beach CBOC

Plaintiff William Gibbons was living in Florida in 2001. He affirms that at that time, he called the Miami Veterans Administration ("VA") to find out where he could receive VA medical services because he is a veteran and because his insurance plan was accepted by VA hospitals, clinics and doctors. The Miami VA referred him to the Deerfield Beach community based outpatient clinic ("CBOC") for outpatient medical treatment, including annual physical examinations. The Deerfield Beach CBOC is operated and staffed by defendant Sterling Medical Corporation.

Defendant Sterling Medical Corporation does business in Florida.

Gibbons began going to the Deerfield Beach CBOC for routine physical examinations in November of 2001 and continued to be treated there through September of 2004. Gibbons was treated by Dr. Fronton at the Deerfield Beach CBOC during this time. Dr. Fronton is a resident of Florida and an employee of Sterling Medical Corporation.

Gibbons alleges that defendants failed to diagnose him timely and properly with prostate cancer. According to the medical records submitted by the parties, Gibbons was evaluated by Dr. Fronton at the CBOC on October 3, 2003.

Dr. Fronton found that Gibbons had a minimally enlarged prostate and that his PSA levels were elevated to 7.06. Dr. Fronton wrote in his progress notes that "[i]f his PSAs are elevated at 7 or above again, I will give him referral to urology."

According to the medical records submitted by both parties, Gibbons was last treated at Sterling Medical Center in connection with his symptoms related to prostate cancer on August 5, 2004. On that date, Gibbons reported blood in his urine and underwent a urinanalysis at the CBOC.

Gibbons moved to New York in October of 2004. In January of 2005, Gibbons went to the Bronx VA Hospital for treatment of a cold. During that visit, his PSA levels were checked and found to be 10.22. On March 11, 2005, a biopsy was performed, revealing that Gibbons had prostate cancer.

II. Gibbons Brings a Medical Malpractice Action: First Against the VA, Then Against Individual Doctors and Sterling Medical Corporation

In June of 2006, Gibbons retained Barton, Barton & Plotkin, LLP to represent him in a medical malpractice action. Gibbons' attorney, Sherri Plotkin, decided that the VA was the proper defendant by interviewing Gibbons and searching the internet to determine the nature of the affiliation between the Deerfield Beach CBOC and the Miami VAMC. The search for the Deerfield Beach CBOC turned up online links to the VA's website, which listed the Deerfield Beach CBOC as one of several VA clinic locations. The search also indicated that the building which houses the Deerfield Beach CBOC has a sign which reads "VA Clinic" on the front of it. In addition, according to Gibbons, all medical bills, medical records and lab test results that he received in connection with his treatment at the Deerfield Beach CBOC between 2001 and 2004 were printed on VA letterhead.

Having decided that the VA was the proper defendant, Plotkin determined that before suing in court, Gibbons must exhaust his administrative remedies pursuant to 28 U.S.C. § 2675(a), the Federal Tort Claims Act ("FTCA"). On July 10, 2006, an Administrative Tort Claim Form (SF-95) for Damage, Injury or Death was filed on Gibbons' behalf with the Department of Veteran's Affairs ("VA"). On July 19, 2006, regional counsel for the VA located in Brooklyn, New York sent a letter to Plotkin, acknowledging receipt of the SF-95 claim. Thereafter, Gibbons forwarded his medical records and other documentation to the VA.

Also in July of 2006, Plotkin received correspondence from the Department of Veterans Affairs, VA Medical Center, Miami, Florida, enclosing a copy of the Deerfield Beach CBOC medical records for Gibbons. Plotkin reviewed the documents and noted that each page of the records was stamped "Printed at Miami VAMC."

According to Plotkin's testimony, on or around January 9, 2007, she received a call from Kathy Merkle, legal counsel on behalf of the VA. Ms. Merkle testified that she does not remember this telephone call. According to Plotkin, Merkle advised her that the VA was investigating Gibbons' claim but had not yet made a determination as to liability. However, Merkle stated that she expected to make a finding of liability. Because the New York office only had authority to settle claims up to a maximum of $100,000, any claims with greater value would be transferred to Washington, D.C. Merkle stated that although the New York office had not yet made a final determination, she anticipated that liability would be found in an amount greater than $100,000, and that the claim would be transferred to Washington.

In early February of 2007, Plotkin received a second telephone call from Merkle. During this call, which Merkle remembers, Merkle advised Plotkin that the Deerfield Beach CBOC was run by Sterling Medical Corporation, an independent contractor. Therefore, the VA bore no liability for the alleged ...

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