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FLICKINGER v. UNITED STATES

October 19, 1981

Ruth FLICKINGER, Plaintiff,
v.
UNITED STATES of America and Cowansville Area Health Clinic, Defendants



The opinion of the court was delivered by: COHILL

This personal injury action, now before this court on the government's motion to dismiss, once again illustrates the pitfalls often encountered by unwary private litigants suing employees of the federal government.

The facts of this case, as set forth in plaintiff's complaint, are rather simple. On Saturday, February 24, 1979, plaintiff Ruth Flickinger, a resident of Armstrong County, Pennsylvania, stepped on a thumb tack, causing a puncture wound to the ball of her right foot. She was treated at the Emergency Room of Armstrong County Memorial Hospital. Three days later, plaintiff's daughter telephoned defendant Cowansville Area Health Clinic ("Cowansville Clinic") and spoke with Nancy Mantini, a nurse-practitioner who was working at the Cowansville Clinic at that time. Plaintiff's daughter told Ms. Mantini that the toes on plaintiff's right foot were turning purple, that there was redness around the purple area, that the flesh around the base of the toes was very white, and that plaintiff was very cold. Ms. Mantini allegedly told plaintiff's daughter "not to worry, that purple was a good color." Complaint, P 6.

 On March 2, 1979, four days after this telephone conversation, plaintiff went to the Cowansville Clinic where a Clinic physician, after examining plaintiff's foot, immediately sent her to Armstrong County Memorial Hospital. There, plaintiff underwent surgery for amputation of the second and third toes of her right foot and removal of gangrenous tissue from the rest of that foot. This action ensued.

 I. Procedural Posture

 Plaintiff originally instituted this suit against Nancy Mantini and the Cowansville Area Health Clinic in state court by filing a praecipe for a writ of summons on or about February 19, 1981. On May 22, 1981, plaintiff filed a complaint in the Court of Common Pleas of Armstrong County, Pennsylvania, in which she alleged that Ms. Mantini was negligent in, among other things, undertaking to provide plaintiff with a medical diagnosis and recommendation, failing to recognize obvious symptoms of infection and gangrene, failing to refer plaintiff to a medical doctor, and giving plaintiff inappropriate instructions regarding her condition. Plaintiff also alleged that Cowansville Clinic was negligent in failing to maintain adequate supervision and control over Ms. Mantini, failing to establish appropriate standard operating procedures by which to catch and correct misinformation given by its personnel, and failing to insure that its personnel were trained to recognize ailments such as that afflicting plaintiff or trained to be aware of their inability to recognize such ailments.

 On June 5, 1981, the United States Attorney for the Western District of Pennsylvania filed a petition to have the United States substituted as a defendant in place of Ms. Mantini and to remove the action to the United States District Court for the Western District of Pennsylvania. At the same time, the United States Attorney filed a certification that at the time of the incident in question, Ms. Mantini was an employee of the United States Public Health Service and was acting within the scope of her employment. On June 8, 1981, this court entered an order substituting the United States as a defendant in place of Ms. Mantini and directing that the case proceed as a tort action against the United States under section 1346(b) of the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

 The United States now moves to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(2), and 12(h)(3) on the grounds that this court lacks jurisdiction over the subject matter and over the person of the United States because plaintiff failed to file an administrative claim, as required by the Federal Tort Claims Act, prior to filing this action and because the two-year period within which plaintiff could file such a claim has expired. This court has jurisdiction pursuant to 28 U.S.C. § 1346(b).

 II. Analysis

 Because Nancy Mantini was a federal employee acting within the scope of her employment at the time of the incident in question, plaintiff's exclusive remedy with respect to Ms. Mantini's alleged negligence is an action against the United States under the Federal Tort Claims Act ("FTCA"). 42 U.S.C. § 233(a). *fn1"

 Section 2675(a) of the Federal Tort Claims Act provides that:

 
An action shall not be instituted upon a claim against the United States for money damages for ... personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his ... employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing....

 Section 2401(b) of that Act, the applicable statute of limitations, provides that "(a) tort claim against the United States shall be forever barred unless it is presented in writing to the ... agency within two years after such claim accrues...." This provision applies to cases removed from state court as well as to cases filed in federal court. See Meeker v. United States, 435 F.2d 1219, 1221-22 (8th Cir. 1970); Reiser v. Di Pietro, 78 F.R.D. 541 (N.D.Ill.1978).

 Plaintiff concedes that her claim accrued more than two years prior to the commencement of this action and that she never filed a written administrative claim with the Department of Health and Human Services or with any federal agency. However in response to the government's motion to dismiss, plaintiff argues that the government should not be permitted to assert sections 2675(a) and 2401(b) as defenses where, as here, plaintiff had no knowledge of defendant's employment status. In the alternative, plaintiff asserts that even if filing a claim within the two-year period is a jurisdictional prerequisite, plaintiff's filing of an action in state court satisfied the ...


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