Johnston v. U.S.

• Decision Date: 13 June 1996
• Docket Number: No. 95-50269,95-50269
• Citation: 85 F.3d 217
• Parties: David JOHNSTON, Individually and as representative of the estate of Richard J. Johnston; Gloria Johnston, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 217

85 F.3d 217

David JOHNSTON, Individually and as representative of the estate of Richard J. Johnston; Gloria Johnston Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 95-50269.

United States Court of Appeals Fifth Circuit.

June 13, 1996.

Walter L. Boyaki, John Gregory Mundie, Miranda & Boyaki, El Paso, TX, for plaintiffs-appellants.

Karen B. Norris, James William Jennings, Jr., Assistant U.S. Attorneys, Office of the United States Attorney, San Antonio, TX, James H. DeAtley, Austin, TX, John Walter Caldwell, Jr., El Paso, TX, for defendant-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, and JONES and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This is a wrongful death suit brought under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. § 1346(b). The district court dismissed the lawsuit for lack of jurisdiction on the basis that the wrongful death action accrued prior to death and was therefore barred by the two-year FTCA statute of limitations. Because we hold as a matter of federal law that a wrongful death claim cannot accrue prior to death, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 1990, Richard Johnston had coronary artery bypass surgery at Brooke Army Medical Center. Dr. Greg Bowman was the primary surgeon. Following surgery, Johnston experienced respiratory difficulty requiring use of a respirator. On June 19, 1990, a fluoroscopy of Johnston's diaphragm suggested that he had a condition called bilateral phrenic nerve apraxia as a result of injury to his phrenic nerve. ¹ Dr. Bowman told Johnston's wife, Gloria Johnston, that her husband's phrenic nerve had been damaged in the earlier surgery and that treatment would be necessary at a different facility. On July 11, 1990, Johnston was transferred to Ven-Care South Texas Hospital. At Ven-Care, Johnston developed pneumonia and died on July 18, 1990.

On July 17, 1992, one day shy of the two-year anniversary of Johnston's death, his son, David Johnston, filed an administrative claim with the Government. Subsequently, Gloria and David Johnston sued the Government for wrongful death under the FTCA alleging medical malpractice by the physicians at Brooke Army Medical Center. Prior to trial, the Government moved to dismiss the suit for lack of subject matter jurisdiction on the grounds that the claim accrued, at the latest, on July 11, 1990. ² As such, the Government maintained the Johnstons' claim was barred by the two-year FTCA statute of limitations. The district court agreed and dismissed the suit. This appeal ensued.

DISCUSSION

Congress enacted the FTCA as a limited waiver of the sovereign immunity of The position of the parties is clear. The Johnstons posit that their wrongful death action accrued at death. Initially, they argue that they have a wrongful death claim under Texas law. Noting that federal law controls accrual, the Johnstons contend that while Texas state law might allow for pre-death accrual, federal law does not. Consequently, the FTCA two-year statute of limitations began to run on July 18, 1990, the date of Richard Johnston's death. Accordingly, their claim was timely filed on July 17, 1992.

                the United States.  United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979).   Subject to some exceptions, the United States is liable in tort for certain damages caused by the negligence of any employee of the Government "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);  see Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir.1995) (en banc).   While substantive state law determines whether a cause of action exists, federal law determines when that claim accrues.  Quinton v. United States, 304 F.2d 234, 235 (5th Cir.1962).   A two-year statute of limitations from the accrual date then applies for FTCA claims.  28 U.S.C. § 2401(b).   However, neither the FTCA nor section 2401(b) explains when a cause of action "accrues."
                

While not disputing that accrual of an FTCA claim is a federal question, the Government maintains that we must look to Texas law to determine the nature of the Johnstons' cause of action. Turning to Texas law, the Government contends that under the facts of this case no liability would exist for a private person in Texas. First, the Government notes that under Texas law, a wrongful death action is a derivative suit. As such, the Johnstons possess only the claim that Richard Johnston had at the time of his death. Richard Johnston's claim was a health care liability claim. Relying on recent Texas Supreme Court authority, the Government maintains that a wrongful death claim premised on medical malpractice accrues on the date of the negligent act. See Baptist Memorial Hosp. Sys. v. Arredondo, 922 S.W.2d 120, 121 (Tex.1996); Bala v. Maxwell, 909 S.W.2d 889, 892-93 (Tex.1995). The Government concludes that because under the Texas accrual date no liability would be imposed on a private person, there can be no liability for the United States under the FTCA.

Thus, we are squarely presented with the question: When, as a matter of federal law, does a wrongful death claim pursued under the FTCA accrue? In answering this troublesome question, we are guided by our own jurisprudence on accrual and the experience of our sister circuits. Our task is complicated by the seemingly incongruous fact that under Texas state law certain wrongful death claims can accrue prior to death.

We begin our analysis with our seminal case on accrual under the FTCA--Quinton v. United States. The facts of Quinton are simple. On May 17, 1956, Quinton's wife, while under care at a military hospital, was negligently administered RH positive blood when her correct type was RH negative. The plaintiffs did not learn of this error until three years later in June 1959 during the wife's pregnancy. In August 1960, Quinton filed his FTCA action alleging that the negligent treatment caused his wife to give birth to a stillborn child and prevented her from safely bearing other children. Quinton, 304 F.2d at 235. Similar to our instant case, the state law in question held that a medical malpractice claim accrued when the alleged negligence took place. The Government, arguing that state law controlled accrual, moved to dismiss on limitations grounds; the district court agreed and dismissed the suit.

On appeal, faced with whether state or federal law determined accrual of a medical malpractice claim pursued under the FTCA, we held that federal law must govern. Our rule was clear:

[F]ederal law determines when the period of limitations contained in Section 2401(b) commences to run (i.e., federal law determines when a "claim accrues" within the meaning of Section 2401(b)), even though we look to state law to determine whether any claim has accrued against the Government which would enable the claimant to Id. at 239-40 (emphasis added). Therefore, under Quinton, state law identifies whether the plaintiff has a cause of action or not. If a cause of action exists, federal law controls when the claim accrues and when the two-year FTCA limitations period begins to run.

                sue under the Tort Claims Act.   In other words, 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
                

Our rationale for adopting this rule guides us today. When Congress adopted the two-year limitations statute, it clearly and unequivocally manifested its intention to have a single limitations period govern all claims asserted against the United States under the FTCA. Id. at 236. This provides the FTCA claimant with a fixed period of time to institute suit, regardless of where the acts giving rise to liability occurred. Relying on state accrual dates would seriously frustrate the clear congressional policy underlying the federal limitations period. We explained:

Obviously, if the various states' rules could severally determine when a claim accrued against the Government under Section 2401(b), the uniformity which Congress sought by enacting that section would be, for all practical purposes, a goal impossible of attainment. Differing state rules as to when a particular tort claim accrues would necessarily produce diverse decisions as to the effect of Section 2401(b). The mere alteration by a state of its rule as to the accrual of a particular claim would alter Section 2401(b) just as effectively as if Congress itself had formally amended that section. Thus, acceptance of the Government's view would permit the states to do indirectly what Congress clearly forbids them to do directly by increasing or decreasing their statutes of limitations on particular claims; and, contrary to the express purpose of Section 2401(b), claimants under the Tort Claims Act would have varying periods within which to bring suit against the Government depending solely on where their claims arose.

Id. at 236 (emphasis added). Hence we identified two laudable goals in answering questions of accrual of FTCA claims: uniformity and equity. ³ It is in the light of these considerations that we review the judgment of the district court.

Faced with the clear holding of Quinton, both the Government and the Johnstons agree that accrual is a federal question; they disagree, however, on what the answer should be in this case. While the issue of accrual of a wrongful death claim is one of first impression for us, our sister circuits have already grappled with this thorny problem.

The Seventh Circuit addressed the issue in Fisk v. United States, 657 F.2d 167 (7th Cir.1981). Fisk was...