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McCall-Scovens v. Blanchard

United States District Court, D. Maryland

October 27, 2016

VERONICA Y. MCCALL-SCOVENS, Plaintiff,
v.
MAY HSIEH BLANCHARD, et. al, Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         Veronica 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, 8.[1]

         The 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.[2] 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.

         Pursuant 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.

         Plaintiff opposes the Motions to Amend, asserting waiver. ECF 42 (“Opposition”). Defendants have replied. ECF 42 (“Physician Reply”); ECF 43 (“Government Reply”).[3]

         No 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.

         I. Factual and Procedural Background[4]

         In 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. ¶ 32.

         In the 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.

         McCall-Scovens underwent “extensive surgical intervention” on February 20, 2013. Id. ¶ 33. She was diagnosed with “stage IIIC serous carcinoma.” Id.

         McCall-Scovens 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.[5]

         The 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.

         On July 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. Id.

         Additional facts will be included in the Discussion.

         II. Discussion

         A.

         The 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.

         In her 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.

         Defendants 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… ...


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