Arteaga v. United States

• Decision Date: 01 April 2013
• Docket Number: No. 12–3189.,12–3189.
• Parties: Gabriela ARTEAGA, individually and as the representative of I.G., a minor, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

711 F.3d 828

Gabriela ARTEAGA, individually and as the representative of I.G., a minor, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 12–3189.

United States Court of Appeals,Seventh Circuit.

Argued Feb. 11, 2013.

Decided April 1, 2013.

Michael T. Gill (argued), Attorney, Matthew D. Ports, Attorney, Pfaff & Gill, Ltd., Chicago, IL, for Plaintiff–Appellant.

Katherine Beaumont (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Defendant–Appellee.

Before EASTERBROOK, Chief Judge, and POSNER and TINDER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff in this medical malpractice case is the mother of a child who was injured during birth. The district court dismissed the suit as barred by the provision of the Federal Tort Claims Act that requires that the claim on which a suit is based be filed with the appropriate federal agency within two years after the claim arose. 28 U.S.C. § 2401(b).

The suit accuses the Erie Family Health Center, where the mother received prenatal care, of neglecting symptoms indicating that at birth the baby would weigh too much for a vaginal delivery to be safe, and of failing to advise the mother to have, therefore, a Caesarean section instead. In the course of the vaginal delivery the baby's shoulder became stuck in the mother's pelvis (the condition known as shoulder dystocia) because the baby was oversized (she weighed 11 pounds). During the delivery nerves in the baby's shoulder were injured (what is called a brachial plexus injury), resulting in a limited range of movement in her right arm, a condition that apparently has persisted.

The child was born in July 2004. A few months later her mother obtained the medical records of the birth and resulting injury and consulted a lawyer. The lawyer recommended against suing. He told her he “did not feel that there could be any legal action taken against the hospital.... [I]t appeared that the midwife did everything she could for the delivery and what happened to [the child] was an accident.”

Fifteen months later, in October 2006, the mother consulted another lawyer. The following month he agreed to represent her, but 16 months later, in February 2008, he withdrew. He did tell her before withdrawing that if she filed a tort suit under Illinois law the statute of limitations would be eight years because her injured child was a minor. 735 ILCS 5/13–212(b). But though correct the advice was misleading. The extension of the statute of limitations for a suit on behalf of a child victim doesn't apply to claims governed by the Federal Tort Claims Act, which lacks a comparable provision. McCall ex rel. Estate of Bess v. United States, 310 F.3d 984, 987–88 (7th Cir.2002); Santos ex rel. Beato v. United States, 559 F.3d 189, 191–92 (3d Cir.2009); Leonhard v. United States, 633 F.2d 599, 624 (2d Cir.1980).

In June of the following year (2009) the mother consulted a third lawyer, who quickly referred her to a fourth and final one. This lawyer agreed to take her case. He obtained a medical opinion, based on the child's records, that Erie employees may have caused the child's injury and if so that it had been because they'd been negligent. In March 2010 the mother filed a malpractice suit in an Illinois state court against the Erie Family Health Center and the Center's nurse-midwives who had provided her prenatal care.

Erie is a private enterprise, but it receives grant money from the U.S. Public Health Service. As a result, its employees are deemed federal employees. 42 U.S.C. § 233(g)(1)(A), (g)(4); U.S. Dep't of Health & Human Services, Health Resources and Services Administration, “FTCA for Health Centers,” http:// bphc. hrsa. gov/ ftca/ healthcenters/ index. html (visited March 6, 2013); Lomando v. United States, 667 F.3d 363, 371–72 (3d Cir.2011); Dedrick v. Youngblood, 200 F.3d 744, 744–46 (11th Cir.2000). Therefore tort suits against it or its employees can be maintained only under the Federal Tort Claims Act. 42 U.S.C. § 233(a), (g)(1)(A). The plaintiff did not know this, and neither, it seems, did any of the four lawyers until April 2010, when a lawyer from another firm told the fourth lawyer that he was in the wrong court. The lawyer filed the requisite federal administrative claim (a prerequisite to suing under the Tort Claims Act, see 28 U.S.C. § 2675(a)) with the Department of Health and Human Services the following month. In August 2010 the government removed the suit to the federal district court in Chicago. That court dismissed the suit, without prejudice, on the ground that the plaintiff had failed to exhaust her administrative remedies.

She exhausted them later. The failure of the Department of Health and Human Services to act on her administrative claim within six months entitled her to treat it as denied, 28 U.S.C. § 2675(a), and she was able, by virtue of the Federal Employees Liability Reform & Tort Compensation Act, Pub.L. No. 100–694, 102 Stat. 4563 (1988) (the “Westfall Act”); see 28 U.S.C. § 2679(d)(2), (5); Celestine v. Mount Vernon Neighborhood Health Center, 403 F.3d 76, 82–83 (2d Cir.2005), to refile the suit in the district court under the Federal Tort Claims Act. She did so in December 2010. But the government moved to dismiss the suit on the ground that the two-year statute of limitations had expired before the original malpractice suit had been filed and that therefore the administrative claim, treated by 28 U.S.C. § 2679(d)(5)(A) as if filed on the date on which the original malpractice suit had been filed, had been filed too late for her suit under the Federal Tort Claims Act to be timely.

The plaintiff argues that her claim didn't accrue (that is, the statute of limitations didn't begin to run) until December 2009, when, she claims, she first learned that negligence by her prenatal caregivers at Erie had caused the baby's injury. But all that is required to start the statute of limitations running is knowledge of the injury and that the defendant or an employee of the defendant acting within the scope of his or her employment may have caused the injury. United States v. Kubrick, 444 U.S. 111, 122–24, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Arroyo v. United States, 656 F.3d 663, 668–69 (7th Cir.2011); Massey v. United States, 312 F.3d 272, 276–77 (7th Cir.2002); Skwira v. United States, 344 F.3d 64, 74 (1st Cir.2003). The plaintiff learned those things shortly after she gave birth. By the following year, 2005, having suspected from the start that the injury had been preventable and having obtained the pertinent medical records and given them to a lawyer to review, she made herself subject to the ancillary principle that the statute of limitations begins to run not only when the prospective plaintiff discovers who caused the injury but also “when a reasonably diligent person (in the tort claimant's position) reacting to any suspicious circumstances of which he might have been aware would have discovered the government cause,” Drazan v. United States, 762 F.2d 56, 59 (7th Cir.1985), or equivalently “when a reasonable person would know enough to prompt a deeper inquiry into a potential cause.” Nemmers v. United States, 795 F.2d 628, 631–32 (7th Cir.1986); cf. Garza v. U.S. Bureau of Prisons, 284 F.3d 930, 935 (8th Cir.2002).

The plaintiff argues that her claim didn't accrue until she learned that Erie could be sued for malpractice only under the Federal Tort Claims Act. That argument fails too. Hensley v. United States, 531 F.3d 1052, 1056–57 (9th Cir.2008); Skwira v. United States, supra, 344 F.3d at 76–77;Gould v. United States Department of Health & Human Services, 905 F.2d 738, 743–45 (4th Cir.1990) (en banc). The thinking that underlies Kubrick and the cases following it, which require knowledgeonly of injury and of the likely cause of the injury to start the statute of limitations running, is that armed with such knowledge the prospective plaintiff should be able to discover within the statutory limitations period the rest of the facts needed for drafting a complaint that will withstand a motion to dismiss. That the defendant is suable only under the Federal Tort Claims Act is one of those facts.

The plaintiff's first lawyer dropped the ball. The plaintiff dropped the ball too, by failing to consult another lawyer until October of the following year. That lawyer dawdled, eventually withdrawing, as we noted, in February 2008. It was not until June of the following year that she consulted a third lawyer, who referred her to her fourth and last lawyer.

Statutes of limitations serve an important social purpose, and prospective plaintiffs have been assigned a role in enabling them to serve that purpose. The role is to be diligent. The plaintiff was diligent until July 2005, when having consulted a lawyer who declined the case she confided her continuing suspicions to a social worker, who advised her to get a second legal opinion. It was good advice. But it took the plaintiff 15 months to act on it by contacting another lawyer (presumably through the referral service suggested by the social worker). By the time he declined the case and she retained her current lawyer, it was a month short of five years after the birth. And by the time her tort suit was filed (in the wrong court, moreover), almost six years had elapsed.

She argues in the alternative (to her argument that her claim did not accrue until she learned of Erie's federal status) that the running of the statute of limitations was suspended (“tolled”) until she discovered that Erie could be sued for medical malpractice only under the Federal Torts Claims Act, which required that the suit be brought in federal court after exhaustion of federal administrative remedies. She argues that the Erie Family Health Center conceals its federal status and hence the shorter statute of limitations governing suits than the comparable state statute, eight years in the case of a minor. Tolling takes for...