United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
Before the court is Defendant United States of America's (the "Government" or "United States") motion to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). (Not. of Mot. to Dismiss (Dkt. 28).) Plaintiff Madeline Torres ("Plaintiff" or "Torres") brings this medical malpractice action against the United States and a non-federal defendant, the Lutheran Medical Center ("Lutheran"), pursuant to the Federal Tort Claims Act ("FTCA"), alleging that Defendants are liable for her treating physician's failure to timely diagnose and treat her ulcerative colitis, thereby resulting in grave and lasting injury to her person. The Government now moves to dismiss the Complaint as it relates to the United States on the grounds that the court lacks jurisdiction over Plaintiff's claim because she failed to timely exhaust her administrative remedies as required by the FTCA. Lutheran has not joined in the motion.
For the reasons set forth below, the Government's motion is GRANTED.
A. Factual Background
As the outcome of the Government's motion turns in large part on when Plaintiff's cause of action accrued under the FTCA, a fulsome recitation of Plaintiff's medical history and the treatment she received while in the care of Defendants is necessary for the court to render a decision.
On December 16, 2008, Plaintiff visited the Shore Road Family Health Center ("Shore Road") for an initial prenatal examination, which was performed by Dr. Irina Karban. (Mem. of Law in Supp. of Mot. to Dismiss ("Gov't Mot") (Dkt. 29) at 3; Gov't Ex. A (Dec. 16, 2008, Shore Road Record).) An ultrasound performed that day showed Plaintiff to be nine weeks pregnant, and Dr. Karban ordered prenatal laboratory testing and started Plaintiff on prenatal vitamins. (Gov't Ex. B (Dec. 12, 2008, Narrative Summary).) Plaintiff was scheduled for a follow-up visit in four weeks' time. (Gov't Ex. A.)
At her follow-up visit with Dr. Karban at Shore Road on January 12, 2009, Torres was diagnosed with anemia. (Gov't Ex. B; Gov't Ex. D (Jan. 12, 2009, Shore Road Record).) Dr. Karban ordered additional bloodwork to be done relating to Plaintiff's anemia and told her to begin taking an iron supplement and Colace capsules, a stool softener. (Id.; Gov't Ex. B.) According to Dr. Karban's summary of her treatment of Plaintiff, she scheduled a follow-up visit for Torres for three weeks from that visit. (Id.)
On January 26, 2009, Plaintiff returned to Shore Road complaining of decreased appetite, constipation, abdominal pain, and at least one episode of rectal bleeding beginning one week prior to her visit. (Gov't Ex. B; Gov't Ex. E (Jan. 26, 2009, Shore Road Record).) In addition to Dr. Karban, Torres was examined by an internist, Dr. Polina Tavrovskaya. Additional laboratory testing was ordered and Plaintiff was transferred to Lutheran's Labor and Delivery ("L&D") department. (Gov't Ex. E; Gov't Ex. F (Jan. 26, 2009, Lutheran L&D Record).) Torres received intravenous fluids at Lutheran and was observed overnight. (Gov't Ex. G (Jan. 26, 2009, Lutheran Progress Notes).) During the night of February 26, Plaintiff complained of continued abdominal pain and suffered several bouts of vomiting (id.), though she was allowed to return home the next morning. (Id.; see also Gov't Mot. at 4.)
Two days later, on January 29, 2009, Plaintiff returned to Lutheran complaining of bloody diarrhea (approximately 10-15 episodes that day), which had been preceded by a period of decreased appetite and constipation. (Gov't Ex. H (Lutheran Discharge Summary).) She was thereafter admitted to the hospital and diagnosed with a lower gastrointestinal or "GI" bleed. ( Id. at 2.) The next day, January 30, 2009, Torres underwent further diagnostics and was found to have severe colitis, likely due to inflammatory bowel disease or ulcerative colitis,  and a biopsy was taken. (Id.) At approximately 1:00 a.m. on January 31, 2009, Torres' blood pressure reportedly dropped, she developed shortness of breath, and her heart rate spiked. ( Id. (reporting that Torres "became hypotensive, techypneic and tachycardic").) A Code RRT, or rapid response team, was called and the Lutheran staff administered cardiopulmonary resuscitation ("CPR"). (Id.; see also Gov't Mot. at 5; Pl. Opp'n at 2.) Plaintiff's doctors ordered a computed tomography ("CT") scan of Torres's chest, which showed large bilateral pulmonary embolisms. (Gov't Ex. H.) The same day, Torres underwent surgery to place a filter in her inferior vena cava to prevent additional pulmonary embolisms. (Gov't Ex. J (Jan. 31, 2009, OP Report).) Plaintiff was then moved to Lutheran's Medical ICU, where she would remain for the next three days. (Gov't Ex. H.) During that period she continued to suffer between 8-10 episodes of bloody stool per day and required at least three additional blood transfusions. (Id.)
The following day, February 1, 2009, a physician at Lutheran, Dr. Vishal Ghevariya, met with Plaintiff to discuss her diagnosis of ulcerative colitis, her prognosis, and the recommended treatment course, along with associated risks and benefits. (Gov't Ex. K (Feb. 1, 2009, Lutheran Progress Notes).) Among the treatment courses mentioned by Dr. Ghevariya was a surgical procedure called a colectomy, whereby a portion of the patient's colon is removed. (Id.; see also Gov't Mot. at 6 n.7.) According to Dr. Ghevariya's notes, Plaintiff's mother and fiance participated in the conversation and Plaintiff herself appeared to understand the conversation. (Id.)
On February 2, 2009, Plaintiff was transferred from Lutheran to Mt. Sinai Hospital for further treatment of her ulcerative colitis. (Gov't Ex. L (Mar. 18, 2009, Mt. Sinai Medical Record).) Though Plaintiff received no further treatment by Dr. Karban or any other Lutheran physician after this date, her treatment for ulcerative colitis continued. On February 4, 2009, Plaintiff underwent a combined colectomy and ileostomy to treat her condition. (Id.; Gov't Ex. M (Feb. 11, 2009, Mt. Sinai Surgical Report).) Two days later, on February 6, 2009, Plaintiff again underwent surgery to remove the blockages in her pulmonary arteries, and at the same time doctors removed a mass from the right ventricle of her heart and performed a valve repair. (Id.) She was taken off ventilation, or "extubated, " the following day, but was reintubated on February 14, 2009, as her condition continued to decline. (Gov't Ex. L.) On February 15, 2009, Ms. Torres went into cardiac arrest but doctors at Mt. Sinai were able to resuscitate her. (Id.) She was again taken off a respirator on February 21, 2009, and remained at Mt. Sinai until she was discharged to Mt. Sinai's inpatient rehabilitation facility on March 3, 2009. (Id.; Gov't Ex. N (Mar. 17, 2009, Mt. Sinai Rehab. Record).) Plaintiff remained in the care of the doctors at Mt. Sinai until she was ultimately discharged on March 17, 2009. (Id.)
B. Procedural History
On February 25, 2011, Plaintiff filed suit against Dr. Karban, Lutheran, Shore Road, and several other parties in the Supreme Court of the State of New York, Kings County, asserting a claim of medical malpractice regarding her treatment by Defendants. See Torres v. Karban, Index No. 4476/2011 (N.Y. Sup Ct. filed Feb. 25, 2011) (Gov't Ex. S). The United States removed that action to this court on July 27, 2011, arguing that Dr. Karban and Shore Road were federally deemed employees acting within the scope of their employment during the events at issue. See Not. of Removal, Torres v. Karban, No. 11-CV-3632 (E.D.N.Y. July 27, 2011) ("Torres I") (Dkt. 1). On August 3, 2011, pursuant to a stipulation of dismissal, Plaintiff's claims against the ...