The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiffs E.Y., a minor, by his mother and next friend, Tenille Wallace, and Tenille Wallace, individually, filed their first amended complaint for damages in this medical malpractice action under the Federal Tort Claims Act, 28 U.S.C. § 2671("FTCA"), and the Family Expense Act, 750 ILL. COMP. STAT. 65/15, against defendant United States of America. Defendant has moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the suit is barred by the two-year statute of limitations under 28 U.S.C. § 2401(b). For the reasons set forth below, the motion is denied.
The following facts come from plaintiffs' complaint and for purposes of evaluating the instant motion, the court takes them as true. On November 4, 2004, then-20-year-old plaintiff Tenille Wallace ("Tenille") first received medical care for her first pregnancy at the federally funded Friend Family Health Center, Inc. ("Center") and was treated by Dr. Nana Biney, M.D. On March 29, 2005, Tenille presented at the Center for a prenatal visit with elevated blood pressure, complaining of face and hand edema and visual changes. Tenille was evaluated and treated by Dr. Biney, who requested that she have prolonged fetal monitoring in labor and delivery and that she return to the clinic in one week. Tenille, however, did not receive the prolonged fetal monitoring when she went into labor on April 4, 2005, and was taken to the University of Chicago Hospital ("Hospital"). Minor plaintiff E.Y. was delivered by C-section because of "non-reassuring fetal monitor strips." At the time of E.Y.'s birth, Tenille knew something was wrong because E.Y. was delivered looking "purple and limp," and within days thereafter a doctor told her that E.Y. had been deprived of some oxygen during delivery. Since then, Tenille, as the parent of E.Y., became obligated for various hospital and medical expenses resulting from E.Y.'s anoxic brain injury under the Family Expense Act, 750 ILL. COMP. STAT. 65/15.
On or about November 28, 2006, plaintiffs' counsel requested a complete copy of plaintiffs' records from the Center and the Hospital. On December 14, 2006, plaintiffs' counsel received a partial set of prenatal records from the Center. Sometime thereafter, plaintiffs' counsel received a partial set of plaintiffs' medical records from the Hospital. On September 11, 2007, plaintiffs' counsel sent the medical records from the Center and the Hospital to a maternal-fetal medicine specialist for review. On September 27, 2007, plaintiffs' counsel received the specialist's opinion that there was a negligent delay between Tenille's admission into the Hospital and plaintiff E.Y.'s delivery. This opinion did not mention prenatal care or possible negligence by the Center.
On October 17, 2007, plaintiffs' counsel requested additional records regarding Tenille that were not previously provided by the Center. On October 19, 2007, plaintiffs' counsel had a complete set of prenatal records from the Center. After receiving more records from the Hospital in January 2008 than were previously provided, on November 21, 2008, plaintiffs' counsel sent the complete medical records from the Center and the Hospital to a second consultant for review. On November 25, 2008, the second consultant opined critically regarding potential negligence by the Center and Dr. Biney in failing to monitor and follow up on the conditions of plaintiffs, calling it a probable and proximate cause of E.Y.'s neurological injuries.
On December 10, 2008, plaintiffs filed an action against the Center, Dr. Biney, and defendants associated with the Hospital in the Circuit Court of Cook County, Illinois, which defendants removed to this court in June 2009. Given that the Center was a private entity that received grant money from the U.S. Public Health Services, pursuant to 42 U.S.C. § 233(b), the United States was substituted for the Center and Dr. Biney as defendant. Defendant United States moved to dismiss on the basis that plaintiffs failed to present their claims to the appropriate federal agency, and thus failed to exhaust their administrative remedies as required under the Federal Tort Claims Act, 28 U.S.C. § 2675(a). This court dismissed the FTCA claim against the United States without prejudice and remanded plaintiffs' state law claims to state court on September 30, 2009.
On October 28, 2009, plaintiffs filed an administrative tort claim with the Department of Health and Human Services ("HHS"). HHS denied this claim on July 27, 2010, entitling plaintiffs to file the instant action under 28 U.S.C. § 2401(b). Plaintiffs filed this action on November 15, 2010.
The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court accepts all well-pleaded allegations of the complaint as true and draws all reasonable inferences in the plaintiff's favor. See McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). Nevertheless, the complaint must plead sufficient facts to suggest plausibly that the plaintiff is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Defendant moves to dismiss plaintiffs' amended complaint for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The heart of defendant's Rule 12(b)(6) motion is that plaintiffs failed to meet the statutory requirement that they present their claims to the appropriate administrative agency, the U.S. Department of Health and Human Services, within two years after the claims accrued. According to 28 U.S.C. § 2401(b), "a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." Plaintiffs' administrative claim is considered as having been filed on December 10, 2008, the date the underlying civil action was commenced in state court. See 28 U.S.C. § 2679(d)(5). Thus, for plaintiffs to proceed, their claims would have had to accrue after December 10, 2006.
Defendant argues that, assuming plaintiffs filed their claims with HHS on December 10, 2008, it was still beyond the two-year statute of limitations from the date of accrual. Defendant claims the statute of limitations began to run in or about April 2005, when plaintiff E.Y. was born and Tenille was first informed of a birth complication, or alternatively, at the latest, in November 2006, when plaintiffs' personal-injury attorney sought medical records from the Center and the Hospital.
Plaintiffs assert that the claims accrued on November 25, 2008, when the second specialist consulted told plaintiffs' counsel about potential negligence by the Center, in which case the December 2008 complaint filing was plainly within the two-year statute of limitations. Alternatively, plaintiffs argue that the claims did not accrue until September 27, 2007, when the first specialist opined about negligence by the Hospital, in which case plaintiffs would have had until September 2009 to file their claims with HHS. At the earliest, plaintiffs assert that their claims could have accrued on December ...