United States District Court, D. Maryland
VERONICA Y. MCCALL-SCOVENS, Plaintiff,
MAY HSIEH BLANCHARD, et. al, Defendants.
Lipton Hollander United States District Judge
Y. McCall-Scovens, plaintiff, filed a medical malpractice
action against the United States; May Hsieh Blanchard, M.D.;
and Vadim V. Morozov, M.D., pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2401(b), 2671 et seq. ECF 1 (Complaint).
The suit is based on the medical care that plaintiff received
from several physicians at the Baltimore Veterans Affairs
Medical Center (“V.A.”). ECF 1 ¶¶ 6,
United States (the “Government”) filed an Answer
to the Complaint on January 21, 2016. ECF 15. Blanchard and
Morozov (collectively, “Physician Defendants”)
submitted answers to the Complaint on February 15, 2016. ECF
19 (Blanchard); ECF 20 (Morozov). Among other things, the
Physician Defendants deny plaintiff's claims (ECF 1,
¶¶ 6, 8) that they were acting as agents or
employees of the V.A. See ECF 19, ¶ 10; ECF 20,
¶ 10. All defendants reserved the right to amend
their answers to assert additional affirmative defenses.
See ECF 15 at 10; ECF 19 at 7; ECF 20 at 7.
to the Scheduling Order of March 22, 2016 (ECF 29), the Court
set a deadline of April 22, 2016, for motions to amend
pleadings. Id. Consistent with the Scheduling Order,
on April 22, 2016, the Government filed a Motion for Leave to
File an Amended Answer to the Complaint. ECF 35
(“Government Motion”). The proposed Amended
Answer (ECF 35-1), and the Amended Answer, with additions in
bold (ECF 35-2), are attached to the Motion. Similarly, on
the same date, the Physician Defendants submitted a Motion
for Leave to File an Amended Answer to the Complaint. ECF 36
(“Physician Motion”). Their proposed amended
answers are attached (ECF 36-1; ECF 36-2), along with the
amendments, in bold (ECF 36-3; ECF 36-4). Defendants seek
leave to amend their answers (collectively, “Motions to
Amend”) to add the affirmative defense of statute of
limitations. See ECF 35, ¶ 4; ECF 36 ¶ 4.
opposes the Motions to Amend, asserting waiver. ECF 42
(“Opposition”). Defendants have replied. ECF 42
(“Physician Reply”); ECF 43 (“Government
hearing is necessary to resolve the Motions to Amend.
See Local Rule 105.6. For the reasons stated below,
I shall grant the Motions to Amend.
Factual and Procedural Background
October 2010, McCall-Scovens presented to the V.A. with
complaints of irregular menstrual periods and a family
history of cancer. ECF 1, ¶ 25. Pelvic ultrasounds in
late 2010 and 2011 revealed persistent growth of a right
ovarian cystic mass. Id. In December 2011, a pelvic
ultrasound revealed findings that “were suspicious for
an ovarian/adnexal neoplasm with clinical evaluation for
possible surgical resection recommended.” Id.
¶ 26. McCall-Scovens contends that as of January 2012,
her doctors should have known that her adnexal mass was
suspicious for malignancy and should have surgically removed
it. Id. ¶¶ 27-31. According to
McCall-Scovens, her physicians did not recommend surgical
removal until January 18, 2013, after testing revealed that
“the previously identified right adnexal mass had
significantly increased in size.” Id. ¶
interim, in April 2012, “the Plaintiff underwent
laboratory testing, including a CA-125 tumor marker study.
This CA-125 study, commonly utilized by health care providers
to evaluate a patient's risk for ovarian cancer, was
determined to be elevated and abnormal, with a value of 49
u/ml.” Id. ¶ 30. In June 2012, after
“the Plaintiff presented to the Defendant VA Medical
Center with the sudden onset of 10/10 lower abdominal pain[,
]” a “CAT scan of the Plaintiff's abdomen and
pelvis identified thickening of the sigmoid colon, a 5 x 9 cm
structure in the right adnexal region with soft tissue and
cystic components, and free fluid in the pelvis.”
Id. ¶ 31.
underwent “extensive surgical intervention” on
February 20, 2013. Id. ¶ 33. She was diagnosed
with “stage IIIC serous carcinoma.” Id.
filed this suit on November 10, 2015. See Docket.
She alleges that defendants “breached the standards of
care in treatment of the Plaintiff Veronica McCall-Skovens
[sic], resulting in a negligent delay in diagnosing her
ovarian cancer, and causing injuries and damages, including a
late-stage cancer diagnosis and terminal
prognosis….” ECF 41, ¶ 1.
Court issued a Scheduling Order on March 22, 2016 (ECF 29),
which set a discovery deadline of September 15, 2016.
Id. According to defendants, plaintiff's counsel
“insisted on a shortened scheduling order due to [his]
client's illness and health status.” ECF 44-2 at 2.
At the time, plaintiff's attorney advised that he was
prepared to move quickly on [his] end in arranging
depositions and responding to discovery.” Id.
7, 2016, defendants submitted a detailed Motion to Modify the
Scheduling Order, claiming plaintiff had delayed discovery.
ECF 44. By Order of July 5, 2016, I granted defendants'
motion. ECF 45. Defendants' Rule 26(a)(2) disclosure
deadline was extended to October 1, 2016, and the discovery
deadline was extended to December 15, 2016. Id.
Dispositive pretrial motions are due on January 17, 2016.
facts will be included in the Discussion.
Government and the Physician Defendants seek to amend their
respective answers to add the defense of statute of
limitations, claiming that amendment is “in the
interest of justice.” ECF 35, Government Motion, ¶
5; ECF 36, Physician Motion, ¶ 7. The Government filed
its motion by the date established in the Scheduling Order,
which was about three months after it filed its initial
Answer. The Physician Defendants also timely filed their
motion, a little over two months after they filed their
initial answers. See Docket.
Opposition (ECF 41), McCall-Scovens maintains that, pursuant
to Federal Rule of Civil Procedure 8(c), defendants have
waived the right to assert the affirmative defense of
limitations. Id., ¶¶ 7, 8. In addition,
she complains about defendants' delay in filing their
amended answers and states, id. ¶ 6:
In each of their respective Answers to Plaintiff's
complaint, all of the Defendants raised numerous affirmative
defenses, including, but not limited to, assumption of the
risk; contributory negligence; and estoppel. None of the
Defendants elected to plead the affirmative defense of
statute of limitations. Now, more than three months later,
these Defendants seek leave of this Court to amend their
Answers and be permitted to plead and assert the affirmative
defense of statute of limitations.
have not explained why the defense of limitations was omitted
from their original answers or what information was
discovered, and when, which led them to seek to amend. They
seem to suggest that they acquired information in discovery,
when “Plaintiff's counsel [ ] provided the
Defendants with a limited set of the Plaintiff's medical
records which date back to October 2010.” ECF 42,
Physician Reply, ¶ 10. But, defendants were alerted to
this same information by the Complaint. See ECF 1,
¶ 21 (“In October of 2010, the Plaintiff…