Pungello v. United States

Background

G.A.P., an infant represented by his parents and natural guardians Caterina Pungello and Joseph Pungello, and the parents individually sued the United States under the Federal Tort Claims Act (FTCA). The claims alleged medical malpractice connected with G.A.P.’s delivery on June 2, 2020. The Government moved for summary judgment, which asks whether the evidence shows there is no genuine factual dispute requiring a trial and whether the moving party is entitled to judgment under the law.

During the delivery, Dr. Fatima Flood had difficulty delivering G.A.P. because one of his shoulders was impacted. Dr. Gbolagade Babalola assisted Dr. Flood. The parents later learned that G.A.P. had limp arms and Erb’s palsy. They testified that a doctor told them the condition could occur when an infant’s head is pulled too hard during birth. A nurse’s note in the hospital records stated, “Dr. Babalola in room assisting,” although Dr. Flood’s delivery note did not mention Dr. Babalola’s involvement.

The parents filed a separate state-court lawsuit against Dr. Flood, Crystal Run Health Care, and the Hospital in 2021. During a July 2022 deposition, Dr. Flood identified Dr. Babalola as the physician who assisted with the delivery. The parents submitted administrative claims to the Department of Health and Human Services on August 12, 2022, alleging that Dr. Babalola committed medical malpractice. The agency denied the claims, including on the ground that they were untimely under the FTCA. The parents then filed this federal action on January 9, 2024, naming the United States as the sole defendant.

Accrual and the FTCA deadline

The FTCA requires a claimant to present an administrative claim to the appropriate federal agency within two years after the claim accrues. The Court explained that medical-malpractice claims generally accrue when the injury occurs. When the injury or its cause is not immediately clear, the claim accrues when the plaintiff knows, or reasonably should know, the basic facts of both the injury and its cause. The plaintiff need not know every detail, the precise medical cause, or that the facts amount to a legally valid malpractice claim.

The Court held that the claims accrued no later than about June 2, 2020. By that date, the parents had seen or learned facts connecting G.A.P.’s injury to the delivery: Mr. Pungello testified that he saw doctors pulling hard on G.A.P.’s head, and a neonatal intensive care unit doctor told the parents that pulling an infant’s head too hard could cause Erb’s palsy. The Court rejected the argument that accrual waited until the parents obtained and reviewed medical records or learned the exact cause of the injury.

Because the parents did not submit their administrative claims until August 12, 2022, more than two years after the claims accrued, the Court concluded that the claims were untimely unless equitable tolling applied.

Equitable tolling

Equitable tolling is an exceptional procedure that pauses a filing deadline when a claimant pursued rights diligently but an extraordinary circumstance prevented timely filing. The Court held that the parents did not satisfy either requirement.

First, the Court found that the parents and their attorneys had not diligently pursued claims against Dr. Babalola. Although they pursued the separate state-court action, the Court said that did not establish diligence concerning the federal claims. The parents knew another person had assisted Dr. Flood, and Mr. Pungello could describe that person. The hospital records also identified “Dr. Babalola in room assisting.” The Court concluded that the parents or their attorneys could have asked hospital staff who had assisted Dr. Flood or investigated the medical records earlier.

Second, the Court rejected the parents’ argument that Dr. Babalola and Dr. Flood intentionally concealed Dr. Babalola’s involvement. The Court found no affirmative evidence that either doctor intentionally omitted Dr. Babalola’s role to prevent the parents from discovering a claim. It also held that, even if there had been misconduct, the parents could have discovered Dr. Babalola’s identity through available information and therefore had not shown that any concealment prevented timely filing. The Court further stated that the COVID-19 pandemic, without supporting explanation, did not establish an extraordinary circumstance.

Ruling

Judge Kenneth M. Karas granted the Government’s motion for summary judgment. He held that the FTCA claims were untimely and that equitable tolling did not apply. The Clerk was directed to enter judgment for the United States, terminate the motion, and close the case.