Fisk v. U.S.

• Decision Date: 21 August 1981
• Docket Number: No. 80-1620,80-1620
• Citation: 657 F.2d 167
• Parties: Mary E. FISK, Special Administratrix of the Estate of Clarence J. Fisk, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 167

657 F.2d 167

Mary E. FISK, Special Administratrix of the Estate of Clarence J. Fisk, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 80-1620.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1981.

Decided Aug. 21, 1981.

Mary L. McElroy, Dept. of Justice, Torts Branch, Washington, D. C., for defendant-appellant.

F. Boyd Hovde, Indianapolis, Ind., for plaintiff-appellee.

Before PELL and WOOD, Circuit Judges, and BONSAL, Senior District Judge. ^*

PELL, Circuit Judge.

The question presented by this appeal is whether a wrongful death claim brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) (1976), is barred by the two-year statute of limitations set forth at 28 U.S.C. § 2401(b), when more than two years have elapsed since the accrual of a personal injury claim for the wrongful act which caused the death, but less than two years have elapsed since the date of death.

The case arises from a judgment of the United States District Court for the Southern District of Indiana, which awarded the plaintiff-appellee $99,195.58 and costs on a finding by the court that negligent medical treatment by the defendant-appellant (the Government) caused the death of the plaintiff's decedent.

On appeal the Government makes two assignments of error. First, it contends that the trial court erred in fixing the date upon which the plaintiff's wrongful death claim accrued as the date of the decedent's death, rather than as the date upon which the decedent's claim for personal injury accrued. ¹ Second, the Government contends that the court erred in finding that the injury which resulted in the decedent's death differed from the injury upon which the decedent's personal injury claim accrued.

I.

In 1950 the decedent was admitted to a Veteran's Administration hospital for diagnosis of severe headaches. Pursuant to that diagnosis, a Government doctor injected a radiopaque dye in the decedent's carotid arteries. The test was negligently performed, and most of the dye leaked into the soft tissues of the decedent's neck. Twenty-two years later, in 1972, the decedent consulted a physician with complaints of hoarseness. Exploratory surgery revealed dense calcific scarring in the decedent's neck surrounding the laryngeal nerve. Following the operation the surgeon informed the decedent in early 1973 that the scarring was related to the previous injection of dye, but that the decedent need not be concerned about it. Nevertheless, this appears to have been the prodromal stage of the ailment ultimately resulting in the death of plaintiff's decedent. Two years later the decedent sought treatment again, complaining of dizziness and blackouts. His physician at that time diagnosed his problem as artery disease caused by the dye-induced scarring. Surgery revealed that scar tissue was compressing the left carotid artery and impeding the flow of blood to the brain. Another subsequent operation sought to alleviate the problem by a carotid artery bypass. In 1976 the decedent submitted an administrative claim for damages, based on the 1950 malpractice. The claim was denied, and the decedent filed suit in the district court for personal injury. In 1979 the decedent was hospitalized again, and one month later he died from complications of pharyngeal ulceration and esophageal stenosis caused by the dye-induced scarring. Thereafter the decedent's personal injury claim was amended to a cause of action for wrongful death, with the decedent's widow, as special administratrix, as the plaintiff. An administrative claim for wrongful death was filed and denied, and the complaint was re-docketed with a new civil action number. The trial court found that the Government had negligently performed the dye injection, that that negligence caused the death of the decedent, and that the plaintiff was damaged thereby in the above-mentioned amount.

II.

The Government's primary assignment of error is that the trial court erred by determining that the date of accrual of the plaintiff's claim was the date of the decedent's death. The Government contends that when, as here, the same events or injuries which give rise to a malpractice claim also give rise to a claim for wrongful death, federal law establishes that the date upon which the malpractice claim accrued is also the date upon which the wrongful death claim accrued, and that unless a timely suit for personal injury is filed, any subsequent wrongful death action is barred. The Government thus characterizes the issue as one of conflict between state law, which it concedes, "preserves a cause of action for wrongful death when the preceding personal injury cause of action is barred by the statute of limitations," and federal law, which it contends bars such a cause of action when it is based upon the same acts of negligence which gave rise to a time-barred personal injury claim.

The FTCA was passed in 1946 to remove some of the protections of the doctrine of sovereign immunity. By its terms it exposes the Government to liability for personal injury or property damage caused by the negligence of any Government employee, "if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b) (1976). The determination of substantive liability is thus governed by whether state law gives rise to a cause of action for the conduct which was the basis of the complaint. Steele v. United States, 599 F.2d 823, 825-26 (7th Cir. 1979); Tyminski v. United States, 481 F.2d 257, 262 (3d Cir. 1973); Hungerford v. United States, 307 F.2d 99, 101 (9th Cir. 1962), overruled on other grounds, Ramirez v. United States, 567 F.2d 854 (9th Cir. 1977). To avoid anomalous results as the result of geographic fortuity, however, the federal statute of limitations, set forth at 28 U.S.C. § 2401(b) (1976), controls whether such a claim is time barred. It is well settled that federal law also controls when a claim accrues for statute of limitation purposes, in order to prevent states from avoiding the two-year rule of § 2401(b). See e. g., Kossick v. United States, 330 F.2d 933, 935 (2d Cir.), cert. denied, 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964) ("(I)t would be ... inimical to allow a state rule postponing 'accrual' far beyond any necessities of the case to subject the United States to the stale claims which the prescription of the short two-year period was intended to avoid."). Thus,

we look to state law to determine whether the plaintiff's action is premature, but to federal law to determine whether the action is stale. If the plaintiff has a cause of action against the Government under state law, federal law then controls as to whether the plaintiff has timely instituted his suit to recover on that cause of action.

Quinton v. United States, 304 F.2d 234, 239-40 (5th Cir. 1962).

Indiana's wrongful death statute, Ind.Code § 34-1-1-2 (1971), is based on Lord Campbell's Act, 1846, 9 & 10 Vict., c. 93, which abrogated the common law rule of Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808), that death could not be complained of as an injury. In re Estate of Pickens, 255 Ind. 119, 263 N.E.2d 151, 155 (1970). The purpose of the statute is not to compensate for the injury to the decedent, but rather to create a cause of action to provide a means by which the decedent's survivors may be compensated for the loss they have sustained by reason of the death. Louisville, Evansville, & St. Louis Railroad v. Clarke, 152 U.S. 230, 236-37, 14 S.Ct. 579, 580, 38 L.Ed. 422 (1894); Pickens, 263 N.E.2d at 155; Wilson v. Jackson Hill Coal & Coke Co., 48 Ind.App. 150, 95 N.E. 589, 590 (1911), cited with approval in N.O. Nelson Mfg. Corp. v. Dickson, 114 Ind.App. 668, 53 N.E.2d 640, 641 (1944) (in banc). Because the wrongful death claim is designed to compensate for the loss to the survivors caused by the decedent's death, and not the underlying injury, the survivor's claim is independent and not derivative: "the action derives from the tortious act and not from the person of the deceased," Pickens, 263 N.E.2d at 156. Thus the statute creates a new and independent cause of action for wrongful death under state law.

Turning to the question of when that cause of action accrues, we note that the Government concedes that in an "ordinary" wrongful death action under the FTCA, the federal rule is that the cause of action accrues upon the date of death. See, e. g., Kington v. United States, 396 F.2d 9 (6th Cir.), cert. denied, 393 U.S. 960, 89 S.Ct. 396, 21 L.Ed.2d 373 (1968) (cause of death discovered 2 months after death: held, statute began to run at date of death); Young v. United States, 184 F.2d 587, 588 (D.C.Cir.1950); Wolfenbarger v. United States, 470 F.Supp. 943, 944 (E.D.Tenn.1979); Pringle v. United States, 419 F.Supp. 289, 291 (D.S.C.1976); Foote v. Public Housing Comm'r, 107 F.Supp. 270, 274-75 (W.D.Mich.1952). See Pollard v. United States, 384 F.Supp. 304, 309-10 (M.D.Ala.1974) (cause of action for wrongful death accrues when claimant discovers the existence of the facts upon which the claim is based, and thus the claim can accrue even after the date of death). Nor is it contested that under Indiana law a claim for wrongful death is not barred despite the lapse of the limitation period governing the decedent's personal injury claim. Wilson v. Jackson Hill Coal & Coke Co., 48 Ind.App. 150, 95 N.E. 589 (1911), cited with approval in Pickens, 263 N.E.2d at 155; Note, Wrongful Death Actions in Indiana, 34 Ind.L.J. 108, 115-16 & n.47 (1958). See Louisville, Evansville, & St. Louis Railroad v. Clarke, 152 U.S. 230, 238, 14 S.Ct. 579, 580, 38 L.Ed.2d 422 (1894) (the plaintiff sued for wrongful death under the Indiana statute; the defendant contended that the action was barred since death occurred more than a year and a day from the injury. Held: "The statute, in express words, gives the...