United States District Court, D. South Carolina, Florence Division
James Timmons, Individually and as Parent and Natural Guardian of X.T., Shelly Timmons, Individually and as Parent and Natural Guardian of X.T., Plaintiffs,
United States of America and Conway Medical Center, Inc., Defendants.
Bryan Harwell, United States District Judge.
matter is before the Court on Defendant United States of
America's [ECF No. 31] motion to dismiss for failure to
state a claim and Defendant Conway Medical Center, Inc.'s
[ECF No. 32] motion to dismiss for lack of subject matter
jurisdiction and under the doctrine of
abstention. This Court converted the pending motions
to dismiss to motions for summary judgment by Text Order on
November 30, 2016.
medical malpractice action was filed on February 12, 2015 and
brought pursuant to the Federal Tort Claims Act, 28 U.S.C.
§§ 2671 - 2680. Plaintiffs alleged claims for
negligence against Defendants United States of America,
Olukayode Akinlaja, M.D., Health Care Partners of South
Carolina, Inc. (HCPSC), and Conway Medical Center, Inc.
Defendant Conway Medical Center (“CMC”) moved to
dismiss the complaint on March 30, 2015, arguing that a
similar action was pending in state court and that the
doctrines of res judicata and collateral estoppel require
dismissal of the federal lawsuit against it. On May 11, 2015,
Defendants Akinlaja, HCPSC, and the United States moved to
dismiss the complaint arguing the claim was due to be
dismissed because Plaintiffs failed to file suit within six
months of receiving the agency denial and equitable tolling
does not apply as a matter of law.
February 24, 2016, the Court denied Defendants motions to
dismiss without prejudice and permitted the parties to engage
in limited discovery for a period of 90 days on the issues of
the statute of limitations, equitable tolling, and whether
CMC is a federal entity for subject matter jurisdiction
purposes. At the close of the limited discovery period, on
June 10, 2016, Defendants refiled their motions to dismiss.
Defendants Akinlaja, HCPSC, and the United States filed their
motion pursuant to Rule 12(b)(6) again arguing
Plaintiffs' claims should be dismissed because Plaintiffs
failed to file a complaint against the United States within
six months after Plaintiffs received the agency's final
denial of the claim pursuant to 28 U.S.C. § 2401(b).
Defendant CMC filed its motion to dismiss pursuant to Rule
12(b)(1) arguing lacking of subject matter jurisdiction and
November 15, 2016, by Consent Order, the parties acknowledged
that the United States is the only federal defendant to be
named pursuant to the Federally Supported Health Centers
Assistance Act, 42 U.S.C. § 233(a) and (g)-(n) and
dismissed Defendants Akinlaja and HCPSC with prejudice.
attached a stipulation of facts, declarations, affidavits,
and other documents to their motions to dismiss. Upon initial
review of Defendants' motions and Plaintiffs'
response, the Court recognized the need to refer to matters
outside the pleadings. On November 30, 2016, the Court
entered a Text Order placing the parties on notice of its
intent to convert Defendants' motions to dismiss into
motions for summary judgment under Rule 12(d) of the Federal
Rules of Civil Procedure. The Court invited Plaintiffs to
supplement the record with any appropriate materials outside
the pleadings that should be considered in determining
whether the United States is entitled to summary judgment
based on Plaintiffs' alleged failure to file the
Complaint within the prescribed statute of limitations and
whether equitable tolling should apply.
December 23, 2016, Plaintiffs filed a memorandum indicating
that they intended to rely on materials already before the
Court and did not plan to submit any additional materials to
the Court in consideration of the pending motions for summary
the limited period of discovery, the parties stipulated to
the following facts:
Health Care Partners of South Carolina, Inc. (HCPSC) is a
nonprofit organization consisting of physicians and health
care professionals who serve the health care needs of
individuals and families in the coastal area of South
Carolina. These services include the care and treatment of
prenatal, labor and delivery, and postpartum care.
Health Care Partners of South Carolina, Inc. was deemed to be
an employee of the Public Health Service pursuant to the
Federally Supported Health Centers Assistance Act (FSHCAA),
42 U.S.C. § 233(g)-(n), on October 15, 1993, redeemed on
June 23, 1996, and from January 1, 2011 to December 31, 2011.
At all times relevant to the allegations contained in the
complaint of this matter Olukayode Akinlaja, M.D. (Akinlaja)
was an employee of HCPSC. Therefore, Dr. Akinlaja and HCPSC
are entitled to coverage under the Federal Tort Claims Act
(“FTCA”) for claims for personal injury,
including death, resulting from the performance of medical,
surgical, dental, or related functions, within the scope of
employment. 42 U.S.C. § 233(a).
the time of the pregnancy of Shelley Timmons (Timmons), she
was provided care by HCPSC for herself and her unborn child.
Part of this care was provided by Dr. Akinlaja at a HCPSC
Conway Medical Center (CMC) is a nonprofit medical center
located at 300 Singleton Bridge Road, Conway, South Carolina.
CMC is not a federally supported health care center under
Akinlaja had medical staff privileges in obstetrics and
gynecology at CMC at all times relevant to the allegations
contained in the complaint. These privileges permitted Dr.
Akinlaja to admit his patients into CMC and provide medical
care and treatment to these patients while at CMC.
all times relevant to the allegations contained in the
complaint, Dr. Akinlaja had privileges at CMC, but he was not
an employee or contractor of or by CMC. During
Plaintiffs' labor and delivery, CMC employees followed
directions/instructions given to them by Dr. Akinlaja
regarding Plaintiffs' treatment.
October 18, 2011 Timmons was admitted to CMC by Dr. Akinlaja
as her treating physician, and remained her attending and
treating physician for the birth of Timmons' son (XT) on
October 19, 2011.
October 18, 2014, the plaintiffs filed a Notice of Intent to
File Suit against all parties named in the suit, save for the
United States. The suit was filed in the South Carolina Court
of Common Pleas for Horry County under the case number
2013-CP-26-06934. On October 29, 2013, the plaintiffs,
through her counsel, sent a letter to Clifford Portis
(Retired CFO of HCPSC) that included the Notice of Intent to
Sue and the affidavit of Richard L. Stokes, M.D. This case
was closed without resolution on May 29, 2014.
October 16, 2013, plaintiffs, James Timmons and Shelley
Timmons, filed an administrative tort claim with the
Department of Health and Human Services (“HHS”)
Region IV Office of General Counsel located in Atlanta,
Georgia. On October 17, 2013, the Region IV Office of General
Counsel forwarded the original documents including the
original mailing envelope to the General Law Division of the
Office of ...