The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action alleging federal claims, under the Federal Tort Claims Act ("FTCA"), against the United States and the Department of Veteran's Affairs ("VA") (collectively "the United States"), and state-law claims for medical malpractice, against the University of Rochester ("U of R") and Shobha Boghani ("Boghani"). Now before the Court is a motion [#41] by the United States to dismiss the FTCA claims for lack of jurisdiction, and a motion [#25] by the U of R and Boghani for summary judgment. For the reasons that follow, the applications are granted. Boghani and the U of R are dismissed from the action, and Plaintiff's action against the United States may proceed solely as to the claim that VA employees were negligent in failing to reschedule Plaintiff's opthalmology appointment after his July 29, 2003 appointment was canceled.
Unless otherwise noted, the following are the undisputed facts of this case. John W. Grace ("Plaintiff") is a veteran who is blind in his right eye due to "branch retinal vein occlusion" and "neurovascular glaucoma." Plaintiff alleges that his blindness could have been prevented if it was treated properly. Plaintiff maintains that Boghani, an opthalmologist working at the Rochester VA clinic, diagnosed him with retinal vein occlusion, but failed to properly treat that condition over a period of years, resulting in his blindness.
On or about October 1, 2001, the VA and the U of R's Department of Opthalmology entered into a contract ("the contract"), for the provision of medical services to VA patients. Field Aff. [#41-1], Ex. 2. The contract refers to the U of R as "the Contractor," and indicates that "services to be performed by the Contractor shall be under the general direction of the [VA]." Id. at 2. The contract states, in pertinent part:
It is expressly agreed and understood that his is a non-personal services contract, as defined in Federal Acquisition Regulation (FAR) 37.101, under which the professional services rendered by the Contractor or its health-care providers are rendered in its capacity as an independent contractor. The Government may evaluate the quality of professional and administrative services provided, but retains no control over professional aspects fo the services rendered, including by example, the Contractor's or its health-care providers' professional medical judgment, diagnosis, or specific medical treatments. The Contractor and its health-care providers shall be liable for their liability-producing acts or omissions.
Id. at 6. The regulation referred to in the previous paragraph, FAR 37.101, states, in pertinent part, that "[n]onpersonal services contract means a contract under which the personnel rendering the services are not subject, either by the contract's terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the Government and its employees." 48 C.F.R. § 37.101 (emphasis added). Additionally, the contract states that while the VA could "evaluate the quality of professional and administrative services provided" under the contract, it "retain[ed] no control over the medical, professional aspects of services rendered (e.g. professional judgments.)" Id. at 13.*fn1
The contract further states that U of R will provide opthalmology services twenty days per month, with such service divided amongst VA clinics in Rochester, New York, Bath, New York, and Canandaigua, New York. Id. Moreover, the contract specifies the following: clinic hours at VA facilities will be 8:00 am - 4:00 pm (Id. at 3); certain diagnostic procedures, which the VA is not equipped to provide, will be performed at the U of R's Strong Memorial Hospital (Id. at 11); the contractor will utilize the VA's medical records system and forms (Id. at 12); the contractor will adhere to VA's customer service standards (Id.); the contractor will "adhere to VA policies and procedures and the regulations of the medical staff bylaws of the [VA] (Id. at 13); and, the VA medical director retains the right to review "the qualifications of Contractor personnel" (Id. at 13).
Pursuant to this contract, Boghani, who was primarily employed by the U of R as a physician and instructor, provided opthalmology services at VA's clinic in Rochester six days per month. Sharma Dep. at 76, 79, 81. The VA determined the number of patients for which Boghani was responsible at the VA clinic. Boghani Dep. at 169. VA clerical staff scheduled Boghani's appointments for her on the days that she worked at the VA clinic, and provided her with the list of patients to be seen each day. Boghani Dep. at 59, 130; Sharma Dep. at 82-85, 95-96.*fn2 Boghani's work schedule at the VA clinic was generally determined by the VA. Boghani Dep. at 60. However, the VA did not control when Boghani took vacation. Boghani Dep. at 199. Boghani was required to see any VA patients who needed opthalmology services. Sharma Dep. at 110-111. Boghani was also required to adhere to general VA guidelines and policies for patient care, but there were no specific policies concerning opthalmology treatments. Id. at 113-116. There was no supervising physician at the VA who exercised "control over the day-to-day performance of [Boghani's] opthalmological work." Boghani Dep. at 195. Boghani's salary and benefits were provided to her by the U of R. Boghani Dep. at 187-188.
Robert B. Babcock, M.D. ("Babcock") was Chief of Staff at the Canandaigua VA Medical Facility at all relevant times. In December 2009, Babcock was deposed in this action. Field Aff., Ex. 1. Babcock stated that contract medical providers, including Boghani, were not supervised by the VA on a day-to-day basis: "These providers are licensed independent practitioners. They're not supervised on a day to day basis." Babcock Dep. at 65; see also, id. at 65-66 ("I'm saying she [Boghani] was not supervised on a day to day basis. She was brought on board as a contract provider to make her independent professional judgments and act upon them.")*fn3 Babcock further testified:
Q: Other than her professional medical judgment[,] her schedule and the method by which she practiced was controlled by the VA, was it not?
A: That's only partially true. The VA provided the support resources for scheduling. There certainly was the requirement that she see all of the patients who presented themselves for care. She did not have the discretion to say, "I don't want to see that veteran," but once [the veteran was] brought into her practice she made the determination of when the next appointment would be, how soon and what diagnostic studies and treatments would be rendered.
Id. at 66; see also, id. at 78 ("There was no one supervising Dr. Boghani's decision on the frequency of follow up including rescheduling patients in her clinic on a day to day basis."); id. at 104 ("Again, none of our clinicians are supervised on a day to day basis. We don't have super clinicians whose job it is to check up what is done during the day by other clinicians."). Babcock further indicated that VA staff did not review Boghani's medical notes. Id. at 101. Babcock stated that the VA reviewed contract doctors' credentials, including their licenses and board certifications, prior to the doctors beginning work, and again every two years. Id. at 128, 133. The VA mandated the number of hours that Boghani had to be available to see patients, but did not require her to see any particular number of patients per day. Id. at 147-148. The VA maintained "minimalist type" equipment at its clinics, and expected that complicated procedures would be performed at U of R's Strong Memorial Hospital. Id. at 151 ("[T]he entire framework of the contract is let's do what we can do locally in the clinic and everything else will be directed to Strong Memorial Hospital to the eye center where it will be done there.")
Krishna Sharma, M.D. ("Sharma") was the "Lead Physician" at the Rochester and Canandaigua VA Clinics at various times during the relevant period. Sharma Dep. at 6-8. In that capacity, Sharma's immediate supervisor was Babcock. Id. at 12. Sharma indicated that part of her responsibilities was "[t]o supervise all the physicians working under me." Id. at 12. However, Sharma indicated that such supervision was general in nature: "When we supervise -- we don't supervise daily if that's what you mean. I don't go to every one's office daily and see, but I was responsible for the supervision." Id. at 14; see also, id. at 90-91 (Contract medical services were performed under the "general direction" of the VA). Sharma indicated that her supervision of physicians consisted generally of overseeing the periodic review of the physician's records (Id. at 14-21) and responding to any complaints received about the physicians. Id. at 75-76. Sharma indicated that she never received any complaints about Boghani. Id. Additionally, Sharma stated that she was not involved in reviewing Boghani's medical records, since Boghani was a specialist, and that such review of Boghani's records, including peer review, was performed by the U of R. Id. at 76; see also, id. at 91 ("[T]he contractor, the specialty like Dr. Boghani I depended on the references from the U of R."); id. at 109 ("There was no opthalmologist supervisor there because there were -- they were University of Rochester.").
Plaintiff was seen by Boghani at the Rochester VA clinic, concerning his right eye, on October 24, 2002, February 6, 2003, and March 28, 2003. Plaintiff was given an appointment to return to see Boghani on July 29, 2003, however, the VA cancelled the appointment. Boghani indicates that she was on vacation on July 29, 2003. Boghani Dep. at 145. The VA clinic had a policy of rescheduling appointments when they were missed by the patient or canceled by the VA. Plaintiff's follow-up appointment with Boghani, though, was not rescheduled.
More than one year later, on August 27, 2004, Plaintiff went to the VA medical facility, complaining of pain in his right eye. Because Boghani was not available, a VA Physician's Assistant scheduled Plaintiff to see a private opthalmologist, Dr. Williams ("Williams"), at Rochester Eye Associates, on an emergency basis. Williams diagnosed Plaintiff with neovascular glaucoma, and determined that Plaintiff was blind in his right eye. Williams performed a laser surgical procedure on Plaintiff's right eye, and subsequently saw Plaintiff for an unspecified number of follow-up visits. The VA declined to pay for additional treatment by Williams, since it had already contracted with Boghani to provide opthalmology services.
Subsequently, on May 24, 2005 and July 12, 2005, Plaintiff received additional treatment from Boghani. Boghani Dep. at 175. Boghani also made a change to Plaintiff's prescription on July 27, 2005. Id.
On June 6, 2006, approximately one year after Boghani's final appointment with Plaintiff, Plaintiff learned that his blindness was preventable. Thereafter, on August 9, 2006, Plaintiff filed an administrative claim against the VA. Field Aff., Ex. 5 (Form SF-95). The claim alleged that Plaintiff's right-eye blindness was "preventable, but for the Malpractice of the VA Medical Centers and their agents, employees, servants, and assigns." Id. In that regard, Plaintiff's claim stated, in pertinent part:
As a result of Dr. Shobha Boghani's failure to diagnose and adequately treat the claimant in accordance with the standard of care, claimant suffers from blindness in his right eye.
Claimant suffered total, complete, and irreversible blindness in his right eye as a result of the negligence and Medical Malpractice of the VA Medical Centers and their agents, employees, servants, and assigns, including but not limited to Dr. Shobha Boghani's negligence and failure to adequately assess and diagnose the Claimant, failure to follow up with the claimant despite knowledge of his history of retinal vein occlusion, failure to adequately monitor and administer appropriate medications, and failure to formulate and execute an appropriate treatment plan.
Id. On November 2, 2006, the VA notified Boghani that Plaintiff had filed an administrative claim alleging malpractice that she committed. Boghani Dep. at 5, 25. The notice directed Boghani not to discuss the claim with anyone outside the VA, and Boghani did not notify the U of R of the claim. On April 10, 2008, the VA denied the claim.*fn4
On January 3, 2008, Plaintiff commenced this action against the United States and the VA, pursuant to the FTCA. Plaintiff's original Complaint [#1] alleged that, "Defendants and their employees and agents, in . . . treating or failing to treat plaintiff deviated from standard and approved practice in the medical community." Complaint [#1], ¶ ¶ 5, 9. The Complaint did not refer specifically to Boghani by name. Instead, it alleged that the "Defendants and their employees and agents" were negligent. In September 2008, Boghani received a Notice of Deposition in this lawsuit. Boghani Dep. at 25. Until Boghani received such notice of her deposition, she did not know that Plaintiff had commenced a lawsuit. Boghani Dep. at 25. Upon receiving this notice, Boghani notified the U of R and her malpractice carrier of the lawsuit. Boghani Dep. at 24. Prior to that, the U of R had no notice of either the administrative claim or the lawsuit.
On October 7, 2008, the United States filed a motion [#12] for leave to commence a third-party action against Boghani and the U of R. As part of the application, the United States indicated that Boghani was an employee of the U of R who merely provided contract medical services to VA patients. Plaintiff consented to the application. On December 12, 2008, the Court granted leave for the United States to commence the third-party action.
On May 22, 2009, Plaintiff filed an Amended Complaint [#21], adding Boghani and the U of R as defendants. The Amended Complaint contends, in pertinent part:
The hospitals operated by [USA and VA] employ, among others, doctors, nurses, interns, residents, nurses aides and other hospital personnel over which it exercises exclusive control and supervision with the right to employ and discharge such employees.
[D]efendants failed to properly monitor and/or treat John W. Grace for known complications of branched retinal vein occlusion in a timely fashion. Defendants and their employees and agents, in so treating and failing to treat plaintiff, deviated from standard and approved practice in the medical committee.
As a result of the carelessness, negligence and gross negligence and malpractice of the agents and employees of defendants, as described above, Plaintiff has suffered [injury].
Defendant USA and defendant VA are vicariously liable for the negligence and medical malpractice of the health care providers, including but not limited to defendant Boghani[.]
Amended Complaint ¶ ¶ 5, 8, 9, 12, 31.
On June 11, 2009, Boghani and the U of R filed the subject motion for summary judgment [#25]. The movants contend that Plaintiff's claims against them, which are state-law malpractice claims governed by the substantive law of the State of New York, are barred by the applicable statute of limitations. Specifically, movants maintain that the claims against them were not commenced within two years and six months, as required by § 214-a of the New York Civil Practice Law and Rules ("CPLR"), which governs medical malpractice claims. Boghani and the U of R further argue that Plaintiff's claims against them do not "relate back" to the filing of Plaintiff's original complaint against the United States and the VA, since the parties are not united in interest, and since neither Boghani nor the U of R knew of Plaintiff's lawsuit until September 2008. Additionally, Boghani and the U of R contend that, even if the claims did relate back, the statute of limitations was not tolled by the "continuous treatment doctrine," since there was an almost-two-year-gap in the treatment that Plaintiff received from Boghani, between March 28, 2003 and May 24, 2005, during which Plaintiff received treatment from Williams.*fn5
On October 13, 2009, Plaintiff filed sworn responses to the United States' Second Set of Interrogatories. When asked to identify each person who was negligent, Plaintiff identified Boghani as "the only natural person plaintiff knows to be negligent" "[a]t present time." Field Aff., Exhibit 8. The interrogatory response identified various alleged deviations from the standard of care by Boghani, including the failure to conduct testing and monthly follow-up examinations.
On November 10, 2009, Plaintiff was deposed in this action. At his deposition, Plaintiff was asked questions about his theory of liability, and he indicated that Boghani was negligent in treating him. Pl. Dep. at 86. He further indicated that the "focus of [his] lawsuit [was] on Dr. Boghani's handling of [his] care." Id. When asked if he was claiming that anyone else working at the VA had been negligent, Plaintiff responded in the negative:
Q: Just generally, other than Dr. Boghani, are you claiming that anybody else at the VA made a mistake or was somehow careless in treating you ...