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Maryland Federal District Court Dismisses Plaintiff’s Claims Against the Government Under the Federal Tort Claims Act in Medical Malpractice Lawsuit

Deidre Horsey v. United States of America, et al.
United States District Court for the District of Maryland, Civil Action No. ELH-14-03844
(D. Md. April 7, 2015)

by Jhanelle A. Graham, Associate
Semmes, Bowen & Semmes (

Available at:  

In Deidre Horsey v. United States of America, et al., the United States District Court for the District of Maryland was asked to decide a case involving the death of Jy’Zhir Horsey, the infant son of Deidre Horsey (“Ms. Horsey”) and Don Hanna, due to alleged medical malpractice with respect to obstetric care provided to Ms. Horsey. On December 10, 2014, Plaintiff, Deidre Horsey, individually and as personal representative of the Estate of Jy’Zhir Horsey (“Jy’Zhir”), and to the use of Don Hanna, sued the United States of America (the “Government”), Three Lower Counties Community Services, Inc. (“Three Counties”), and Peninsula Regional Health System, Inc., d/b/a/ Peninsula Regional Medical Center (collectively, “Peninsula”). Ms. Horsey alleged that defendants provided negligent obstetric care to her and to Jy’Zhir in March 2012, resulting in the death of Jy’Zhir on April 25, 2012. Among other things, Ms. Horsey claimed that defendants failed to recognize that the baby was in fetal distress during Ms. Horsey’s labor and failed to undertake a timely delivery by Cesarean Section. According to Plaintiff, as a result of the negligent medical care, the infant “sustained catastrophic anoxic brain injury and died from his injuries. . . .” After reviewing the record, the Maryland federal district court granted, in part, and denied, in part, the Government’s Federal Tort Claims Act (FTCA) motion; dismissed Plaintiff’s claims against the Government, and denied as moot the Government’s request to dismiss Three Counties as a defendant. Further, the court held the Peninsula Motion in abeyance, for fourteen (14) days, to permit Plaintiff the opportunity to file a motion to dismiss voluntarily her claims against Peninsula.

According to Ms. Horsey, Jy’Zhir died on April 25, 2012 as a result of allegedly negligent obstretic care provided to her by defendants on March 26, 27, and 28 in 2012. Ms. Horsey filed a claim against the United States of America with the United States Department of Health and Human Services (“HHS”), which was denied on November 4, 2013. With its FTCA motion, the Government submitted a copy of Ms. Horsey’s notice of denial and a copy of a United States Postal Service certified mail receipt, which showed that the Denial Notice was mailed the same day, November 4, 2013. Ms. Horsey did not dispute the authenticity of those documents, or the date of mailing of the Denial Notice. Thereafter, Ms. Horsey filed a medical malpractice claim with the Maryland Health Care Alternative Dispute Resolution Office (“HCADRO”). According to the time stamp on the HCADRO Claim, Ms. Horsey filed it on May 6, 2014, naming the United States and Peninsula. Ms. Horsey “elected to waive health claims arbitration” with the HCADRO, and filed suit in federal court on December 10, 2014.

The district court began its analysis by stating that Fed. R. Civ. P. 12(b)(1) governs a challenge to a federal court’s subject matter jurisdiction. The Fourth Circuit has held that a plaintiff’s failure to file timely an FTCA claim deprives federal courts of jurisdiction over the claims. Accordingly, the district court determined that the Government’s FTCA Motion was properly adjudicated under Rule 12(b)(1).

A test of subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “‘that the jurisdictional allegations of the complaint [are] not true,’” or that other facts, outside the four corners of the complaint, preclude the exercise of subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). The Government raised two (2) factual challenges to Ms. Horsey’s FTCA claims: (1) Horsey’s Complaint must be dismissed because she failed to file it in federal court within six (6) months from the date of mailing of the Denial Notice; and (2) in response to Ms. Horsey’s argument that her HCADRO Claim satisfied the FTCA’s six (6)-month filing requirement, the Government argued that, even if that were a valid interpretation of the FTCA requirement, Ms. Horsey nonetheless failed to meet it because she commenced her HCADRO Claim more than six (6) months after denial of her administrative claim.

In a factual challenge, “the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009). The district court stated that a plaintiff may recover against the Government only to the extent that the Government has expressly waived sovereign immunity. See, e.g., Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990) (holding that a waiver of sovereign immunity “cannot be implied but must be unequivocally expressed”) (internal quotations omitted). Any “‘limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.’” Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)).

The district court observed that it was undisputed that Ms. Horsey filed an administrative tort claim with HHS and that it was “denied” on November 4, 2013. It was also undisputed that HHS mailed a notice of denial of that claim to Ms. Horsey on the same date, November 4, 2013. Consequently, Ms. Horsey had until six (6) months after the date of mailing of the notice of final denial of her administrative claim—i.e., early May 2014—to file suit in accordance with § 2401(b). Because Ms. Horsey did not file suit until December 10, 2014, many months after the May 2014 deadline, the district court determined that the suit was not commenced timely.

Additionally, even if the suit were commenced timely, Ms. Horsey did not offer any support for her argument that an action is begun under the FTCA when a plaintiff files an administrative claim with a State agency. In its FTCA Memo, the Government cited a number of cases in which suits were dismissed where the plaintiffs failed to file complaints in federal court within six (6) months of the date of mailing of the final denial of their administrative claims. According to the district court, the plain meaning of the statutory text is that an “action is begun” when it is filed in court. The court found that Ms. Horsey offered no argument as to why the plain meaning of the statute was ambiguous, or why, if it were ambiguous, the court should interpret it any differently than it did in Raplee v. United States, PWG-13-01318 (Letter Order memorializing rulings made during a hearing in February 2014 and stating that “filing a claim with the [HCADRO] is a substantive precondition to commencing a suit in the U.S. District Court, but such a filing does not begin an ‘action’ for the purposes of the” FTCA). Accordingly, Ms. Horsey’s claims against the Government were dismissed for lack of subject matter jurisdiction because plaintiff’s “action” was not “begun” within six (6) months after the date of mailing of the Denial Notice, i.e., the denial of her administrative claim.

The court then directed its attention to Peninsula’s motion to dismiss for lack of subject matter jurisdiction, which asked the court to decline to exercise supplement jurisdiction over Ms. Horsey’s claims against it if the Court dismissed Ms. Horsey’s claims against the Government. Ms. Horsey did not oppose the Peninsula motion, “[i]n the event that the federal claims [we]re dismissed …,” but she asked that she “be afforded the opportunity to voluntarily dismiss her non-federal claims rather than have them dismissed by the Court.” Accordingly, the district court held the Peninsula motion in abeyance to permit Ms. Horsey to voluntarily dismiss her claims against Peninsula.

For these reasons, the district court granted the FTCA Motion, in part, and denied it, in part. The court dismissed Ms. Horsey’s claims against the United States of America, with prejudice, and denied as moot the request for dismissal of defendant Three Counties, contained within the FTCA Motion, in light of the Order granting the Government’s Consent Motion. Finally, the district court denied as moot the Transfer Motion in light of the reassignment of the case to federal district court.