United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT
OF DEFENDANT UNITED STATES (ECF NO. 56)
CAMERON MCGOWAN CURRIE Senior United States District Judge
Opinion and Order Denying Motion for Summary Judgment of
Defendant United States This matter is before the court on
Plaintiff's complaint alleging medical malpractice
against medical care providers, including providers at a
federally funded community health care center, pursuant to
the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671, et seq. ECF No. 1. Defendant United
States of America (“United States”) filed a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), or, in the alternative, for summary judgment
pursuant to Federal Rule of Civil Procedure 56, alleging the
action is barred by the statute of limitations. ECF No. 56.
Plaintiff filed a response in opposition on April 17, 2017.
ECF No. 63. Defendant United States filed its response on
April 24, 2017. ECF No. 65. For the reasons set forth below,
the motion is denied.
alleges injury after her abdominal pain, which she alleges
was never properly treated, developed into “significant
damage to her intestines and caused a life threatening
infection, ” sepsis. ECF No. 45, Am. Compl. ¶ 37.
Plaintiff originally presented to the Piedmont Medical Center
Emergency Room (“Piedmont ER”) (operated by
Defendant Amisub of S.C., Inc.) on September 13, 2013,
complaining of persistent abdominal pain. Id. at
¶ 9. She was seen by Defendant Dr. Warden, who performed
a physical examination, lab testing, ultrasound of the lower
abdomen, and CT scan. Id. at ¶¶ 9-11. No
surgical consult was ordered, and Plaintiff was discharged
with narcotic pain killers and an instruction to follow up
with a gastroenterologist. Id. at ¶ 14. On
September 19, 2013, Plaintiff had an appointment with
Defendant Dr. Garrison, a gastroenterologist, who scheduled
and conducted a colonoscopy on September 25, 2013.
Id. at ¶¶ 15-16. Defendant Garrison sent
Plaintiff to a surgeon, Defendant Espinal, the same day as
her colonoscopy. Defendant Espinal ordered a CT scan, the
results of which Plaintiff alleges she was never informed.
Id. at ¶ 18. On September 26, 2013, Plaintiff
went to see April Logan, a physician's assistant, at
North Central Family Medical Center (“NCFMC”), a
federally funded community health care center in Rock Hill,
South Carolina. Ms. Logan ordered an ultrasound and referral
to urology. Id. at 19.
was next seen by Ms. Logan on January 14, 2014, for abdominal
pain. Id. at ¶ 24. Ms. Logan referred Plaintiff
back to Defendant Espinal, who saw Plaintiff in February
2014. Plaintiff was prescribed prednisone at that
appointment. Id. at ¶ 26. On March 21, 2014,
Plaintiff returned to NCFMC complaining of abdominal pain.
Id. at ¶ 28. The physician she saw ordered
another ultrasound, which “noted tubular structures and
encouraged a CT scan.” Id. at ¶¶ 29,
30. Plaintiff was to follow up at NCFMC on April 14 for her
ultrasound results, but due to pain she returned to the
Piedmont ER by ambulance that day. Id. at ¶ 31.
Defendant Warden prescribed antibiotics for a urinary tract
infection. Id. at ¶ 34. Defendant Fleet ordered
an additional antibiotic after a culture on April 18, 2014.
Id. at ¶ 36.
4, 2014, Plaintiff returned to the Piedmont ER for continuing
abdominal pain and had a CT scan. Id. at ¶ 37.
She was diagnosed with “either an infected inflamed
appendix or a flare up of IBD that was never properly
discovered or treated.” Id. Having been
untreated for a period of time, these led to sepsis and
ultimately the amputation of three limbs. Id. at
United States has filed its motion as one to dismiss or, in
the alternative, for summary judgment, arguing Plaintiff
filed her claim outside the two-year statute of limitations
for FTCA actions. See 28 U.S.C. § 2401(b).
Plaintiff's claim was filed with the appropriate agency
on June 14, 2016, more than two years after the United States
argues the statute accrued on May 4, 2014. As the court has
considered documents attached to the motion and response that
are not “integral to the complaint, ” it will
consider this motion as one for summary judgment. See
Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th
judgment should be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). It is well established that summary
judgment should be granted “only when it is clear that
there is no dispute concerning either the facts of the
controversy or the inferences to be drawn from those
facts.” Pulliam Inv. Co. v. Cameo Properties,
810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for
summary judgment has the burden of showing the absence of a
genuine issue of material fact, and the court must view the
evidence before it and the inferences to be drawn therefrom
in the light most favorable to the nonmoving party.
United States v. Diebold, Inc., 369 U.S. 654, 655
Federal Tort Claims Act waives the sovereign immunity of the
United States for civil actions in federal court for injuries
“caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope
of his office or employment.” 28 U.S.C. §
1346(b)(1). “The United States shall be liable,
respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a
private individual under like circumstances . . .” 28
U.S.C. § 2674.
medical records were attached by the parties to the motion
and responses. The records are from Plaintiff's
hospitalization at Carolinas Medical Center
(“CMC”) and following treatment at NCFMC.
Plaintiff was admitted to CMC on May 6, 2014 as a transfer
from Piedmont ER. ECF No. 65-1 at 1. On May 14, 2014, she was
seen by an orthopedist who noted her history and diagnosis as
“s/p SBO and perforation with peritonitis and sepsis
requiring vasopressors and subsequent sever (sic) dry
gangrene to ...