GAULT

v.

UNITED STATES

This Federal Tort Claims Act suit is based on alleged negligence during Russell Gault’s treatment for a manic episode. I dismissed Gault’s first amended complaint for lack of subject-matter jurisdiction over any medical malpractice claim—which is time-barred by Florida’s statute of repose—and for failure to state a negligent infliction of emotional distress (NIED) claim, because Gault failed to allege an impact that contributed to his emotional distress. ECF No. 25. After Gault repleaded, ECF No. 26 (SAC), the government moved to dismiss, arguing that Gault has again failed to state an NIED claim and that, at any rate, his claim still sounds in medical malpractice.¹ ECF No. 28 at 4, 6.

I. NIED THEORY

As noted before, a plaintiff who has suffered an impact may “recover[] for emotional distress stemming from the incident during which the impact occurred,” even without a physical injury. Eagle-Picher Indus., Inc. v. Cox, 481 So. 2d 517, 526 (Fla. 3d DCA 1985) (citation omitted). Still, the plaintiff must allege that that impact contributed to his emotional distress in some way. See Arditi v. Grove Isle Ass’n, Inc., 905 So. 2d 151, 153 (Fla. 3d DCA 2004). The magistrate judge concluded that, as repleaded, “Gault’s emotional distress was not sufficiently related” to the alleged impact—the injection of a sedative—to

I disagree. Gault specifically alleged that “the injection, and the fact that it was administered by [Nurse] Delaney, caused [his] mania to become so severely aggravated, and [his] emotional distress to become so great, that for the only time during [his] stay, [he] directed [his] outrage at a specific VA employee” by shouting an obscenity at her. SAC at 6 ¶ 20. He also alleged that “the peak of [his] emotional suffering occurred as the injection needle wielded by [Nurse] Delaney entered [his] body.” Id. at 12 ¶ 2. These allegations—which the court accepts as true at this stage, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)—sufficiently plead that the injection contributed to his emotional distress.

1052, 1056 (Fla. 2007) (“The [negligence] claimant must first demonstrate that the defendant owed a ‘duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.’” (quoting Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d

1182, 1185 (Fla. 2003)). Gault also alleges that the VA nurses breached a duty to provide him with a place to sleep. See SAC at 3-4 ¶¶ 7, 10, 12; id. at 9-10 ¶ 1.A. Gault cites—as sources of this duty—Maslow’s Hierarchy of Needs and the parental responsibility to provide one’s child with shelter. See ECF No. 29 at 5-6 ¶¶ 12-13. But Gault was provided a place to sleep; he simply didn’t find it comfortable. See SAC at 3 ¶ 6

Ultimately, then, Gault is claiming the nurses had a duty to provide him with a different place to sleep. See SAC at 3 ¶ 7 (alleging that [Nurse] Branca “negligently stated that there was no[]” other place for Gault to sleep); id. at 4 ¶ 12 (alleging that four nurses “negligently failed to offer [the seclusion room] to me” for sleeping). And, as discussed next, in that respect he’s clearly asserting medical malpractice.⁵ “[M]erely because ‘a wrongful act occurs in a medical setting does not necessarily mean that it involves medical malpractice.’” Nat’l Deaf Acad., LLC v. Townes, 242 So. 3d 303, 310 (Fla. 2018) (quoting with approval Joseph v. Univ. Behav. LLC, 71 So. 3d 913, 917 (Fla. 5th DCA 2011)). Things like spilling scalding hot tea on a patient, kicking a patient’s foot while adjusting a chair’s footrest, or failing to separate patients previously involved in altercations, constitute ordinary negligence even when occurring in a medical setting. Id. at 310-11 (first discussing Joseph, 71 So. 3d 913; then discussing Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d 468 (Fla. 3d DCA 2006); and then discussing Tenet St. Mary’s Inc. v. Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004)). “[F]or a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical

Any reasonable person would know, without expert testimony, that leaving altercation-prone people in close proximity—like spilling scalding liquid onto someone or kicking their foot—poses an unreasonable risk of harm. In contrast, the alleged duty to provide Gault with an alternate sleeping location is predicated on professional knowledge and judgment, such that proving breach would require expert testimony. This is evident from the Second Amended Complaint. First, Gault directly alleges that, “[t]hrough their education and training, VA staff who provide treatment for bipolar patients should be well aware of the direct relationship between sleep duration, and improvement of manic symptoms.” SAC at 3 ¶ 5 (emphasis added). He similarly alleges that, “[t]hrough their education and training, VA staff who provide treatment for bipolar patients should be able to easily foresee that sleep deprivation would have deleterious effects on patients suffering from acute manic episodes.” Id. at 12 ¶ 3 (emphasis added). Further, Gault cites medical journals for the proposition that sleep constitutes medical treatment for a manic patient (and lack thereof can worsen symptoms). See id. at 3 ¶ 4 (“Sleep is vital for treating manic episodes.” (citing National Institutes for Health)); id. at 3 ¶ 5 (“Sleep duration is more important than medication in the treatment of acute mania . . . .” (cleaned up) (citing same)); id. at 4 ¶ 9 (“[S]leep deprivation can precipitate mania . . . .” (citing Psychology Today)). And he cites a medical journal to allege that “‘[a]ll nurses owe a legal duty of care to their patients,’ and nurses will ‘have a higher duty of care than someone who has limited or no medical knowledge.’” SAC at 9 ¶ 2 (quoting Nursing Standard) (marks added); see also ECF No. 29 at 4 ¶ 4 (quoting same journal in response to government’s motion to dismiss). Finally, Gault cites the VA’s clinical guidelines as establishing a relevant duty of care. SAC at 9 ¶ 1.A (“Providers need to assist [bipolar] patients in keeping regular routines (e.g., bed times, wake times, exercise) and minimizing the impact of events that could disrupt their moods and daily/nightly stability.” (emphasis removed)). In short, the Second Amended Complaint plainly shows that—in order to prove negligence here—Gault will need to establish that the VA nurses’ conduct fell short of a professional standard of care when they failed to give Gault a different place to sleep during his manic episode. And he will need to present expert testimony to do so. For these reasons, Gault’s claim is for medical malpractice and not NIED.

II. MEDICAL MALPRACTICE THEORY

In my earlier order, I already concluded that Florida’s 4-year statute of repose has time-barred any medical malpractice claim arising from Gault’s allegations in this case. ECF No. 25 at 2-3. As a result, I concluded that I lack subject-matter jurisdiction over any such claim. Id. at 3. In response to the government’s latest motion to dismiss, Gault now says the statute of repose should have been tolled during the⁶ months the FTCA barred him from suing after filing his administrative claim. See ECF No. 29 at 12-15; see also 28 U.S.C. § 2675(a) (permitting filing of FTCA suit only after federal agency has

“finally denied” administrative claim and, at claimant’s option, deeming administrative claim finally denied if agency fails to act within⁶ months). Gault’s claim was less than a month late. Compare ECF No. 1 (reflecting filing date of May 22, 2020), with SAC at 3-6 ¶¶ 6-20 (alleging events occurring on May⁶ and 7, 2016).

So the tolling he proposes would render his claim timely. Statutes of repose—which have different purposes and objectives than statutes of limitation—“generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff’s control.” CTS Corp. v. Waldburger, 573 U.S.¹, 9 (2014) (“Statutes of repose effect a legislative judgment that a defendant should ‘be free from liability after the legislatively determined period of time.’” (quoting 54 C.J.S., Limitations of Actions § 7, p. 24 (2010))). There is no reason to believe Florida’s medical-malpractice statute of repose is an exception. Cf. Univ. of Miami v. Bogorff, 583 So. 2d 1000, 1003 (Fla. 1991) (“Even if there were fraudulent concealment by Dr. Koch, however, we find the Bogorffs’ complaint against Koch and the University of Miami barred by the repose period . . . .”); Kush v. Lloyd, 616 So. 2d 415, 421 (Fla. 1992) (“Because its application has the potential . . . of barring a cause of action before it accrues, Florida has enacted few statutes of repose. However, the medical malpractice statute of repose represents a legislative determination that there must be an outer limit beyond which medical malpractice suits may not be instituted.”).

Some courts have held that the FTCA preempts Florida’s medical-malpractice statute of repose, see, e.g., Huntoon v. United States, 2017 WL 11500195, at *3 (N.D. Fla. Sep. 23, 2017) (applying Wiersum v. U.S. Bank, N.A., 785 F. 3d 483 (11th

Cir. 2015), to find statute of repose conflict-preempted because it encourages plaintiffs to “rush[] in to court” before agency review is complete, thereby “hinder[ing] important purposes underlying the FTCA”), but I find that position unpersuasive. Gault could have complied with both statutes, even after allowing the administrative review process to run its course⁶—so the two don’t conflict. More

States, 732 F. 3d 749, 754 (7th Cir. 2013) (first citing 28 U.S.C. § 1346(b); and then citing Molzof v. United States, 502 U.S. 301, 305 (1992) (“[T]he extent of the United States’ liability under the FTCA is generally determined by reference to state law.”)).

At bottom, Gault had the same 4-year repose period during which to sue as any plaintiff suing a private defendant. To permit tolling here would allow Gault more time than a private plaintiff has—something contrary to what the FTCA provides: a cause of action against the government in situations “where the United

States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” § 1346(b)(1); cf. also Benjamin v. U.S. Dep’t of Just., 2022 WL 1567768, at *2 (11th Cir. May 18, 2022) (per curiam) (“Under the FTCA, the United States is subject to liability in a tort action in the same manner, and to the same extent, that a private individual would be under the law of the place where the tort occurred.” (emphasis added)). Gault offers no convincing argument (or persuasive authority) that the court should do so.

I therefore conclude, as before, that Gault’s medical malpractice claim is timebarred by Florida’s statute of repose, such that the court lacks subject-matter jurisdiction over his complaint. Further, because amendment would be futile—under the pleaded facts, Gault can only plausibly state a claim for medical malpractice— his complaint must be dismissed without leave to amend.

CONCLUSION

The government’s motion to dismiss (ECF No. 28) is GRANTED, and Gault’s Second Amended Complaint (ECF No. 26) is DISMISSED without leave to amend. The clerk will enter judgment that says, “This case is dismissed for lack of subject-

matter jurisdiction.” The clerk will then close the file. SO ORDERED on August 23, 2022. s/ Allen Winsor United States District Judge