Blanche v. United States, 15–1868.
| Citation | 811 F.3d 953 |
| Decision Date | 02 February 2016 |
| Docket Number | No. 15–1868.,15–1868. |
| Parties | Arianna BLANCHE, a minor, by Latoya Blanche, guardian of Arianna Blanche, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Martin Head, Attorney, Hilfman & Head, Chicago, IL, for Plaintiff–Appellant.
Jonathan C. Haile, Attorney, Office Of The United States Attorney, Kevin J. Clancy, Attorney, Lowis & Gellen LLP, Chicago, IL, for Defendant–Appellee.
Before BAUER and HAMILTON, Circuit Judges, and PETERSON,* District Judge.
Arianna Blanche ("Arianna"), by her mother and guardian Latoya Blanche ("Latoya"), filed suit against the United States under the Federal Tort Claims Act ("FTCA") for injuries that Arianna sustained during birth. The United States moved for summary judgment, arguing that Arianna's claims were not timely under the FTCA's statute of limitations. The district court granted the motion, and Arianna appealed. For the reasons that follow, we affirm.
While Latoya was pregnant with Arianna, she received her prenatal care at the Will County Community Health Center ("Health Center"), from February 11, 2008, to August 27, 2008, for a total of 12 visits. The Health Center received federal grant funding from the United States Public Health Service pursuant to 42 U.S.C. § 254b.
On September 2, 2008, Latoya entered the emergency room at Silver Cross Hospital and Medical Center ("Silver Cross") because she was suffering from abdominal pain. She was directed to the labor and delivery unit, where Dr. Husam Marsheh ("Dr. Marsheh") decided to induce labor. Although Dr. Marsheh was also affiliated with the Health Center, he did not treat Latoya during her prenatal care appointments.
During the delivery, Arianna became stuck in the birth canal. Dr. Marsheh had Latoya continue to push while he moved her into different positions. Latoya testified at her deposition that she was scared and that it felt like the baby was stuck for nearly 20 minutes, but she acknowledged that it was probably less. Latoya also testified that at some point, Dr. Marsheh "hollered" at the nurses and asked Finally, after Dr. Marsheh had Latoya turn her body in a certain position, she heard a "popping sound," and then Dr. Marsheh was able to deliver Arianna.
Arianna was born on September 4, 2008, and weighed 11.7 pounds (a condition known as "macrosomia," in which the child has a significantly larger than average birth weight). Once Arianna was born, several other doctors entered the room and rushed Arianna out. Latoya asked and began to cry. The nurses reassured her that Arianna was going to be alright. After giving birth, the next time Latoya saw Arianna was when Arianna was in the Intensive Care Unit, and her right arm was in a splint. When Latoya asked why Arianna's arm was in a splint, it was explained to her that Arianna sustained an injury during birth.
In addition, at some point after the delivery, Dr. Marsheh "apologized" to Latoya regarding Arianna's difficult birth. Latoya was questioned about this conversation several times in her deposition:
Prior to leaving the hospital, Arianna was diagnosed with Erb's Palsy
. Erb's Palsy involves the weakness of the arm as a result of an injury to the brachial plexus, the nerves surrounding the shoulder. Although Latoya knew of Arianna's diagnosis, she did not understand that Erb's Palsy involved damage to the nerves connecting to Arianna's right arm until over a year after the birth when Arianna was with a specialist at Children's Memorial Hospital in Chicago.
Latoya left Silver Cross and returned home with Arianna, whose right arm was still in a splint. Upon seeing Arianna's arm, Latoya's friends and family asked her if she had filed a lawsuit or retained a lawyer. Within one or two weeks after Arianna's birth, Latoya met with an attorney in Joliet, Illinois. In Latoya's deposition, she was asked why she sought out the Joliet attorney, to which she responded: "I guess to pursue a lawsuit against the hospital, because of my [baby's] arm." Latoya ultimately did not retain this attorney because she did not believe he was a good lawyer.
After the meeting with the Joliet attorney, Latoya did not meet with another lawyer for almost a year. In August 2009, Latoya saw a law firm's television commercial that indicated that if your child suffered from Erb's Palsy
, you may have a claim for medical malpractice and should call the telephone number listed. Latoya called the number and eventually retained counsel on August 10, 2009. In October 2009, the law firm sent requests for Latoya's medical records to Silver Cross and the Health Center. Counsel received her prenatal records from the Health Center in February 2010 and her complete labor and delivery records from Silver Cross in April 2010. Despite having all of the pertinent medical records by April 2010, counsel waited over a year before filing suit.
On May 4, 2011, Arianna, by her guardian and mother Latoya, filed a lawsuit in Illinois state court against the Health Center, Silver Cross, Dr. Marsheh, and the prenatal care providers from the Health Center. On November 29, 2011, the United States removed the matter to federal court, pursuant to 28 U.S.C. § 2679(d)(2) and 42 U.S.C. § 233, arguing that at the time of the incident, the Health Center, Dr. Marsheh, and the prenatal care providers at the Health Center were deemed employees of the United States for purposes of the FTCA. Upon removing the case, the United States filed a motion to dismiss for failure to exhaust administrative remedies pursuant to 28 U.S.C. § 2675(a), which the district court granted on December 15, 2011.1
On February 10, 2012, Arianna, by her guardian and mother Latoya, presented her claim to the United States Department of Health and Human Services ("HHS"). On August 23, 2012, the HHS denied the claim under the FTCA's two-year statute of limitations, pursuant to 28 U.S.C. § 2401(b). On September 13, 2012, Arianna, by her guardian and mother Latoya, filed her complaint in the district court against the United States complaining of the injuries Arianna suffered resulting from the actions of Dr. Marsheh and the prenatal care providers. Her complaint makes several of the same allegations against both Dr. Marsheh and her prenatal care providers, such as failure to diagnose macrosomia, failure to offer Latoya the option to proceed by way of a Cesarean Section
("C–Section"), and inappropriately allowing Arianna to be delivered vaginally. The complaint also alleges that Dr. Marsheh "performed inappropriate maneuvers" and "applied excessive traction on the abdomen" during the delivery. In addition, the complaint states that Latoya's prenatal care providers failed to properly examine her and assess the size of her fetus, failed to "correlate the week 37 ultrasound findings with a clinical examination," and failed to determine the size of the fetus "during the prenatal work up and evaluation."
On March 17, 2015, the district court granted summary judgment in favor of the United States, holding that Arianna's claims against Dr. Marsheh and her prenatal care providers were barred by the statute of limitations. This appeal followed.
We review the district court's grant of summary judgment de novo, and grant all reasonable inferences in favor of the nonmoving party. Bernier v. Morningstar, Inc., 495 F.3d 369, 372–73 (7th Cir.2007). Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
In this case, both the claims against Dr. Marsheh and against the prenatal care providers are treated as a lawsuit against the United States for purposes of the FTCA. 42 U.S.C. § 233(g). As a result, the FTCA statute of limitations applies, which states that 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. " 28 U.S.C. § 2401(b) (emphasis added). However, the FTCA's "savings provision" allows a plaintiff's claims to proceed as timely if she filed a civil action within two years of her claim's accrual and presented the complaint to the appropriate federal agency within 60 days of her claim's dismissal. See Arroyo v. United States, 656 F.3d 663, 668 (7th Cir.2011) ; see also 28 U.S.C. § 2679(d)(5).
Here, the FTCA's savings provision applies because Arianna presented her complaint to the HHS within 60 days of her claims' dismissal. But, she filed her initial civil action in Illinois state court on May 4, 2011. Therefore, the issue in this case is whether Arianna's claims against the United States resulting from her delivery and her prenatal care accrued before May 4, 2009.
"An FTCA claim accrues when: (A) an individual actually knows enough to tip him off that a governmental act (or...
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