After a state lawsuit alleging negligence against two Los Angeles medical centers was removed to federal court, the defendants requested dismissal or summary judgment based on the plaintiff’s failure to follow the protocol set out under the Federal Tort Claims Act (FTCA).
Under the FTCA, plaintiffs are required to file a claim against a government agency in advance before filing a lawsuit in court.
“Instead of filing suit against the United States in federal district court, Plaintiff filed a lawsuit against HHS, the deemed federal employees and various non-federal medical providers in state court,” wrote Jennifer R. Jacobs, assistant United States attorney, on behalf of defendants United States Department of Health and Human Services (HHS), Children's Hospital Los Angeles, Providence Holy Cross Medical Center, Northeast Valley Health Corporation, Dr. Mendez, Mary Ellen Wakim, M.D. and Jocelyn Singh, N.P.
As previously reported, Diego Garcia, a minor, through his guardian ad litem Marja Fajardo, sued the U.S., Children's Hospital Los Angeles, Providence Holy Cross Medical Center, and Dr. Mendez for allegedly misdiagnosing him with rheumatoid arthritis when it was later determined that he was actually suffering from leukemia.
“Prior to filing suit, plaintiff timely submitted a government claim to the United States Department of Health and Human Services (“HHS”),” wrote Jacobs in the defendant's Notice of Motion and Motion to Dismiss Plaintiff's Complaint, or, in the alternative for summary judgment. "On May 13, 2020, HHS denied the claim. In a letter to Plaintiff’s counsel dated the same date, HHS advised that if Plaintiff is dissatisfied with the denial he could “file suit against the United States in the appropriate federal district court within six (6) months.”
Although the plaintiffs did name the United States of America as a defendant in their Feb. 10 complaint, it was filed in Los Angeles Superior Court instead of federal court.
“Because Plaintiff failed to file his Complaint within six months of the mailing of agency notification denying his administrative claim, as required by the FTCA, the Court should dismiss Plaintiff D.G.’s claims against the United States on the grounds they are time-barred,” Jacobs asserted.
It was the defendant’s attorney Jacobs who removed the case to the Central District of California on March 9..
“Plaintiff’s Complaint is time-barred because he did not initiate his action against the United States in district court until after the six-month deadline had passed. Notification of final agency action was mailed on May 13, 2020,” Jacobs wrote in the pleading.
Attorney Everardo Vargas Valencia, who represents the plaintiffs, has not yet filed a reply but in the original complaint blames the defendants for disabling serious and permanent physical injuries.
"Due to defendant's failure to timely and properly diagnose care treat and evaluate plaintiff's medical conditions to detect and early treatment of plaintiff's leukemia, the aforementioned defendant breached the applicable standard of care and failed to use the level of skill, knowledge, and care and diagnosis and treatment that a reasonably careful medical practitioner and specialists would use in the same or similar circumstances," the complaint states.
A scheduling conference is set for May 21 before Judge Stanley Blumenfeld.