Amburgey v. United States

• Citation: 733 F.3d 633
• Decision Date: 24 October 2013
• Docket Number: No. 12–6279.,12–6279.
• Parties: Delma AMBURGEY, Individually, as Administratrix of the Estate of Jerry Michael Amburgey, and as next Friend of J.A., a minor, Plaintiff–Appellant, v. UNITED STATES of America; Mountain Comprehensive Health Corporation, and Mahmood Alam, M.D., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

733 F.3d 633

Delma AMBURGEY, Individually, as Administratrix of the Estate of Jerry Michael Amburgey, and as next Friend of J.A., a minor, Plaintiff–Appellant,

v.UNITED STATES of America; Mountain Comprehensive Health Corporation, and Mahmood Alam, M.D., Defendants–Appellees.

No. 12–6279.

United States Court of Appeals, Sixth Circuit.

Argued: June 19, 2013.

Decided and Filed: Oct. 24, 2013.

ARGUED:Stephen M. O'Brien III, Stephen M. O'Brien III, PLLC, Lexington, Kentucky, for Appellant. Callie R. Owen, United States Attorney's Office, Lexington, Kentucky, for Appellees. ON BRIEF:Stephen M. O'Brien III, Stephen M. O'Brien III, PLLC, Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., Charlton S. Shier IV, United States Attorney's Office, Lexington, Kentucky, for Appellees.

Before: GILMAN, GRIFFIN, and WHITE, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

On January 21, 2009, Jerry Michael Amburgey (Jerry) sought treatment for his persistent pneumonia from Dr. Mahmood Alam at a clinic run by Mountain Comprehensive Health Corporation (MCHC) in Whitesburg, Kentucky. Jerry died that same day from a severe allergic reaction to an intravenous contrast dye that was administered to him in preparation for a CT scan. His wife, Delma Amburgey (Delma), later sued Dr. Alam, MCHC, and—because MCHC is an agency of the federal government—the United States.

The sole issue on appeal is whether Delma timely filed an administrative claim with the U.S. Department of Health and Human Services (HHS), the answer to which determines the viability of her wrongful-death suit against the United States. See28 U.S.C. § 2401(b) (barring tort claims against the United States unless the claim is received in writing by the appropriate federal agency within two years of the claim's accrual). Ruling on the government's motion to dismiss, the district court held that Delma's administrative filing was untimely. It therefore dismissed the Complaint for lack of subject-matter jurisdiction. SeeFed.R.Civ.P. 12(b)(1). For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

Jerry saw a pulmonary specialist in late December 2008 after months of battling pneumonia. The specialist recommended doing a lung biopsy, which first required a medical-clearance stress test. During that test, Jerry was thought to have some type of coronary blockage, so he was sent to the Pikeville Medical Center for a cardiac catheterization. He was given an intravenous contrast dye in preparation for that procedure, but the dye triggered a severe allergic reaction that nearly killed him. His medical chart was then updated with the information concerning his allergy and sent by facsimile to MCHC's Whitesburg clinic.

Despite Jerry's medical chart having been flagged with the allergy information, he was again administered intravenous contrast dye on January 21, 2009 in preparation for a CT scan, this time at Dr. Alam's direction. Jerry once again had a severe allergic reaction. He was rushed to the emergency room at the nearby Whitesburg Appalachian Regional Hospital, where he died soon after his arrival.

Following Jerry's death, Dr. Alam told Delma and other family members that Jerry had died of natural causes as a result of aspirating a blood clot that was associated with what Dr. Alam suspected was lung cancer. He also told the family that no autopsy would be necessary.

Meanwhile, Wallace Bolling, the Letcher County coroner, arrived at the hospital after learning of Jerry's death. He spoke with members of Letcher County's Emergency Medical Service (EMS) who had transported Jerry from MCHC's clinic to the emergency room. They told Bolling that they had been able to intubate Jerry but could not resuscitate him. The coroner then met with the Amburgey family in the emergency room, who related to him Dr. Alam's explanation for Jerry's death and the doctor's comment that no autopsy was necessary. Bolling then told the family that the cause of death that Dr. Alam had described to them—aspirating a blood clot—conflicted with information that he had received from the EMS personnel. Because of this conflict, Bolling ordered that an autopsy be performed. The autopsy report, issued on April 7, 2009 and given to Delma soon thereafter, listed the cause of death as an allergic reaction to the intravenous contrast dye administered to Jerry on January 21, 2009.

B. Procedural background

On January 20, 2011, one day before the second anniversary of Jerry's death, Delma mailed the required form for asserting a wrongful-death claim against the government to MCHC. MCHC received the form four days later and in turn forwarded it to HHS, the latter being the appropriate federal agency for notification purposes under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b). See28 C.F.R. § 14.2(b)(1) (requiring federal agencies to transfer claims to the proper agency for adjudication). Because the form was received by HHS more than two years after the date of Jerry's death, the government denied Delma's claim as untimely. Her administrative appeal was likewise denied, and this lawsuit followed.

The government moved to dismiss Delma's tort claim for lack of subject-matter jurisdiction. SeeFed.R.Civ.P. 12(b)(1). It argued, and the district court agreed, that Delma's claim accrued on the date of Jerry's death and that she failed to present her claim to the appropriate federal agency (HHS) within two years of the claim's accrual. See28 U.S.C. § 2401(b); 28 C.F.R. § 14.2(a) (providing that a claim is deemed “presented” to a federal agency when the proper claim form or other written notification is received by the agency). The court granted the government's motion and dismissed the Complaint. Delma timely appealed.

II. ANALYSIS

A. Standard of review

“We review de novo a district court's dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(1)....” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir.2012). A challenge to subject-matter jurisdiction under Rule 12(b)(1) is either a “facial attack,” where the court must take all of the allegations in the complaint as true, or a “factual attack,” where the court can “weigh evidence to confirm the existence of the factual predicates for subject-matter jurisdiction.” Id. (internal quotation marks omitted). In the latter circumstance, we review the district court's factual findings under the clear-error standard. Lovely v. United States, 570 F.3d 778, 782 (6th Cir.2009). But “[e]ven when the parties raise a ‘factual’ challenge by submitting exhibits relating to subject-matter jurisdiction, we give deference to the district court only to the extent the district court actually made factual findings.” Id.

In the present case, the district court assumed the facts in the Complaint to be true and apparently made the same assumption with respect to the facts set forth in affidavits supporting Delma's claim and in her response to the government's Motion to Dismiss. Amburgey v. United States, No. 7:11–132–KKC, 2012 WL 4602438, at *3 (E.D.Ky. Sept. 29, 2012). The court did not make any separate factual findings. We will therefore review de novo the district court's application of the law to those assumed facts.

B. Claim accrual under 28 U.S.C. § 2401(b)

The FTCA bars a tort claim against the United States unless first presented to the appropriate federal agency “within two years after such claim accrues.” United States v. Kubrick, 444 U.S. 111, 113, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (quoting 28 U.S.C. § 2401(b)). Although the FTCA does not define when a claim “accrues,” the Supreme Court has held that a plaintiff's medical-malpractice claim accrues when he “knows both the existence and the cause of his injury.” Id.Kubrick thus established an “inquiry-notice rule” rather than a “discovery rule (in the sense of discovering the existence of a claim).” Hertz v. United States, 560 F.3d 616, 618 (6th Cir.2009). To avoid confusion, we note that some of our sister circuits have described Kubrick as establishing a “discovery rule,” but they use the term “discovery” in the same sense that this court uses the term “inquiry-notice,” i.e., discovering the injury and its cause. See, e.g., In re Swine Flu Prods. Liab. Litig., 764 F.2d 637, 639–40 (9th Cir.1985)(describing Kubrick's accrual analysis as a “discovery rule” and contrasting it with the traditional tort rule of accrual at the time of injury).

Typically, a tort claim accrues under 28 U.S.C. § 2401(b) “at the time of the plaintiff's injury.” Kubrick, 444 U.S. at 120, 100 S.Ct. 352. This court has recognized, however, that in “medical-malpractice cases in which the plaintiff has little reason to suspect anything other than natural causes for his injury, a plaintiff might need to know, or have reason to know, of doctor-caused harm (though not necessarily negligently doctor-caused harm) in order for his claim to accrue.” Hertz, 560 F.3d at 619 (emphasis in original). In other words, many plaintiffs will know “enough of the critical facts of injury and causation to protect [themselves] by seeking legal advice” at the time of injury, id. at 618 (internal quotation marks omitted), but other plaintiffs, particularly in the medical-malpractice context, will not know enough about the cause of injury to be on inquiry notice of a possible tort claim until long after the injury, see id.

A comparison of the tort claim at issue in Hertz with that in Kubrick clarifies this point. In Hertz, the plaintiff's wrongful-death tort claim was held to accrue at the time of her husband's death in an airplane crash. Because “[p]lane crashes by their nature typically involve negligence somewhere in the causal chain[,] ... the mere fact of the event” was deemed sufficient to trigger the plaintiff's duty to inquire further about the crash and to seek legal advice. Id. at 619 (...