Arroyo v. United States

656 F.3d 663, 2011 U.S. App. LEXIS 18193, 2011 WL 3849638

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 1, 2011
• Docket: 10-2311
• Status: Published

Opinions

CUDAHY, Circuit Judge.

Christian Arroyo contracted a bacterial infection from his mother during his birth. The physicians involved in Christian’s delivery and post-delivery care failed to diagnose and treat this infection in a timely manner, which caused the newborn to suffer severe brain injuries. Several years later, Christian’s parents filed suit against the United States under the Federal Tort Claims Act. The district court found the United States liable for Christian’s injuries, rejecting the United States’ claim that the Arroyos’ claims were untimely. We affirm.

I. Background

In 2002, Maria Solorzano Arroyo and Carlos Arroyo conceived a child (collectively referred to as the Arroyos). During the course of Solorzano Arroyo’s pregnancy, she received low cost medical care at the Erie Family Health Center, Inc. (Erie Center), a health clinic that received federal funds for the purpose of treating low income, underinsured individuals. The Erie Center’s doctors did not detect any problems with Solorzano Arroyo’s pregnancy when providing her with prenatal care and forecasted her due date for June 12, 2003.

On May 16, 2003, Solorzano Arroyo went into labor. She went to Northwestern Memorial Hospital and gave birth to her son, Christian Arroyo in the early morning hours of May 17, 2003. Because Christian’s birth was more than a month premature, Solorzano Arroyo had not undergone the battery of diagnostic tests, including a test for Group B Streptococcus (GBS), that women typically undergo in the month pri- or to delivery. These diagnostic tests are extremely important, as they indicate whether an infant will be at risk of contracting any diseases from his or her mother’s blood during birth and allow health care practitioners to take steps to reduce the risks that such incidents will harm the infant.

When a mother has not had these diagnostic tests, medical professionals protect infants by utilizing a two-pronged approach. First, at the delivery stage, doctors are required to observe the presence or absence of four risk factors. Second, after the baby is born, doctors are required to be vigilant in looking for signs indicating the presence or absence of neonatal sepsis (a bacterial infection of the baby’s bloodstream). If a medical professional finds any indications of infection, then she must immediately administer antibiotics to prevent the spread of infection. Because GBS is fairly benign in adults, mothers can carry it asymptomatically during pregnancy. Newborns can contract the disease during birth and, unless it is treated immediately, it can cause severe and permanent brain injuries.

Shortly after birth, Christian exhibited several symptoms indicating that exposure to his mother’s blood had infected him with GBS. However, the obstetrician, Rahda B. Reddy, M.D. (Dr. Reddy), and pediatrician, Verlainna Callentine, M.D. (Dr. Callentine), responsible for taking care of Solorzano Arroyo failed to detect the infection and treat Christian with antibiotics. Because of this failure, Christian suffered severe and permanent brain injuries. If the doctors had promptly treated Christian, it is likely that the damage done to Christian’s brain would have been significantly reduced.

On July 11, 2003, Christian was discharged from Northwestern Memorial hospital. At the time of discharge, doctors informed the Arroyos that Christian had suffered brain injuries and that the injuries were caused by his exposure to his mother’s blood during birth. The Arroyos were not told that Christian’s injuries could have been prevented if the GBS infection had been treated at an earlier point in time. As a result of the injuries to his brain, Christian suffers from cerebral palsy, spastic quadriplegia, a seizure disorder, an inability to swallow, a communications deficit, incontinence and permanent pain.

In July of 2004, Christian’s mother gave birth to her second son and it was at this time that she first heard about the use of neonatal antibiotics. In approximately October of 2004, the Arroyos saw a lawyer’s television commercial that indicated that Christian’s injuries could have been caused by his doctors and that they might have grounds for a lawsuit. After seeing this commercial, the Arroyos contacted a law firm and began to investigate the cause of Christian’s injuries.

On December 30, 2005, the Arroyos filed a state court lawsuit, naming Drs. Reddy and Callentine as defendants, alleging that both doctors failed to provide proper prenatal care at the Erie Center and during the time surrounding Christian’s birth. At the time of Christian’s injuries, both Dr. Reddy and Dr. Callentine were affiliated with the Erie Center and were on the Northwestern Memorial Hospital medical staff. The United States Department of Health and Human Services (HHS) has deemed the Erie Center and its employees to be employees of the U.S. Public Health Service, pursuant to the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n), as amended by the Federally Supported Health Centers Assistance Act of 1995, Pub.L. No. 104-73. Accordingly, the Federal Tort Claims Act (FTCA) shields the Erie Center’s employees, which include Dr. Reddy and Dr. Callentine, from liability while acting within the scope of their duties, with the United States assuming liability for any negligent acts they commit. See 42 U.S.C. § 233(g)(1).

On April 19, 2006, while their suit in state court was pending, the Arroyos filed an administrative claim with HHS. See 28 (requiring a claimant instituting an action against the United States for injury caused by a negligent act or omission of any employee of the Government to first present the claim to the appropriate Federal agency). HHS denied the Arroyos’ claim, as well as their subsequent request for reconsideration.

On August 30, 2007, within six months of HHS’s final written denial, the Arroyos’ state court suit was removed to the Northern District of Illinois and the United States was substituted as the defendant, as required by federal statute. See 28 U.S.C. § 2679(d) (requiring a claimant’s tort suit against a federal employee to be removed to a federal court in the district and division in which the action was pending as well as requiring the substitution of the United States as the defendant).

In January of 2010, the district court conducted a week-long bench trial. At the conclusion of trial, the court found in favor of the Arroyos. It held that both Drs. Reddy and Callentine negligently failed to recognize and act upon risk factors and signs indicating GBS infection, and as such, caused Christian’s injuries by failing to administer antibiotics. Even though the court found that the government was liable for Christian’s injuries, it ordered the parties to file post-trial briefs addressing the issues of damages and the government’s statute of limitations defense.

On April 2, 2010, the district court issued a written opinion concluding that the Arroyos’ claim was filed within the two year statute of limitations for claims filed pursuant to the FTCA. See 28 U.S.C. § 2401(b) (barring a tort claim against the United States unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues). The court awarded the Arroyos over $29 million in damages for various past and future losses and expenses. The government filed a timely appeal from this decision and requests that we reverse the district court’s statute of limitation finding.

II. Analysis

The only part of the district court’s decision that the government challenges on appeal is the court’s rejection of its statute of limitations defense. The government argues that the district court’s decision should be reversed on two grounds: (1) the court failed to apply the proper test for determining when the Arroyos’ FTCA claim accrued and (2) several of the court’s factual determination were erroneous.

The parties dispute whether the district court’s statute of limitations holding constitutes a legal or a factual finding. The district court’s finding regarding the governing claim accrual rule is a legal determination and, as such, is subject to de novo review. See Jones v. General Electric Co., 87 F.3d 209, 211 (7th Cir.1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 510, 136 L.Ed.2d 400 (1996). The district court’s determination of the date that the Arroyos knew that Christian’s injuries could have been caused by his doctors, or the date that a reasonably diligent person would have discovered the same, constitutes a factual finding. We review such findings for clear error. See Rush v. Martin Petersen Co., 83 F.3d 894, 896 (7th Cir.1996) (reviewing a finding of actual knowledge for clear error); Brock v. TIC Intern. Corp., 785 F.2d 168, 171 (7th Cir.1986) (reviewing a “reasonable person” finding for clear error because the date “the statute of limitations beg[ins] to run[ ] is a question of fact”), superseded by statute on other grounds. We have jurisdiction over the government’s appeal under 28 U.S.C. § 1291.

1. The FTCA’s Statute of Limitations and FTCA Claim Accrual

Given the complexity of the issues raised in this appeal, an extended discussion of our jurisprudence on when FTCA claims accrue and when the FTCA’s statute of limitations bars a plaintiffs claims is merited.

The FTCA constitutes a limited waiver of the United States’ sovereign immunity and allows individuals to bring an action for damages against the federal government for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1); Warrum v. United States, 427 F.3d 1048, 1049 (7th Cir.2005). The federal government’s liability under the FTCA is cabined by the Act’s statute of limitations, which bars claims that were not presented in writing to the appropriate agency within two years of the date that the claim accrues. 28 U.S.C. § 2401(b); Jastremski v. United States, 737 F.2d 666, 669 (7th Cir. 1984). This two year limitation period is loosened by the Act’s savings provision, which states that a plaintiffs claim will be considered timely if: (1) he filed a civil action that contained his claim within two years of his claim’s accrual; and (2) he presented his claim to the appropriate federal agency within sixty days of his civil suit’s dismissal. See 28 U.S.C. § 2679(d)(5).

Federal law governs when a claim accrues under the FTCA, McCall v. United States, 310 F.3d 984, 987 (7th Cir.2002), and we, along with other circuits, have held that a plaintiffs claim accrues when: (A) the plaintiff discovers; or (B) a reasonable person in the plaintiffs position would have discovered that he has been injured by an act or omission attributable to the government. See Goodhand v. United States, 40 F.3d 209, 214 (7th Cir. 1994); Massey v. United States, 312 F.3d 272, 276, 279 (7th Cir.2002); Barnhart v. United States, 884 F.2d 295, 298 (7th Cir.1989); see also McCullough v. United States, 607 F.3d 1355, 1359 (11th Cir.2010); Hughes v. United States, 263 F.3d 272, 275-76 (3d Cir.2001). It is worth emphasizing that an individual’s FTCA claim accrues only when the individual knows (or should have known) of the “cause that is in the government’s control, not a concurrent but independent cause that would not lead anyone to suspect that the government had been responsible for the injury.” Drazan v. United States, 762 F.2d 56, 59 (7th Cir.1985).

Our prior decisions concerning FTCA claims have recognized that there are often multiple causes for a plaintiffs injury. See, e.g., id. at 58-59; Nemmers v. United States, 795 F.2d 628, 629-32 (7th Cir.1986). In Drazan, we provided the following example of how a single injury can be viewed as the result of multiple causes:

A postal van knocks a man down, and he strikes his head against the pavement and is killed. No one sees the accident, and the hospital to which the body is taken gives out the cause of death as a fractured skull. That is one cause but the postal service is another; and unless the decedent’s survivors know or should have known that the postal service caused the decedent’s head to hit the pavement, just knowing that he died from a fractured skull does not start the statute of limitations running.

Drazan, 762 F.2d at 59. We have often noted that determining the causes underlying a claimant’s injury can be a more complicated task than it initially appears, particularly in the context of medical malpractice claims. Id. at 59 (stating that courts must distinguish between plaintiffs’ cognizance that they have been harmed and their recognition that they may have been harmed by their doctors). For instance, in Nemmers, we decided that a child’s cerebral palsy was caused by both the mother’s unusually difficult delivery and the actions taken by the health care practitioners overseeing the delivery. Nemmers, 795 F.2d at 629. The plaintiffs knowledge of the former cause was insufficient to cause the statute of limitations to start running on her FTCA claim — accrual only occurred upon her learning that her doctor’s actions might also have contributed to her child’s injury. Id

There are two final aspects of our FTCA claim accrual jurisprudence that warrant discussion. First, it is worth emphasizing the disjunctive nature of the claim -accrual inquiry. An FTCA claim accrues when: (A) an individual actually knows enough to tip him off that a governmental act (or omission) may have caused his injury; or (B) a reasonable person in the individual’s position would have known enough to prompt a deeper inquiry. Thus, the proper way to determine when the statute of limitations for FTCA claims begins to run is a two-part inquiry that incorporates subjective and objective components. Id at 631. A plaintiffs claim accrues the first time the plaintiff knew, or a reasonably diligent person in the plaintiffs position, reacting to any suspicious circumstances of which he or she might have been aware, would have discovered that an act or omission attributable to the government could have caused his or her injury.

Second, we have held that accrual of an individual’s FTCA claim is not postponed until the individual obtains complete knowledge of the cause of his injury. Rather, accrual occurs when an individual acquires information that would prompt a reasonable person to make “a deeper inquiry into a potential [government-related] cause” of his or her injury. Id at 632. An individual does not need to have reason to believe that the relevant governmental conduct was negligent; mere knowledge of the potential existence of a governmental cause is sufficient to start the clock ticking. United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). In other words, the statute of limitations begins to run “either when the government cause is known or 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^ — whichever comes first.” Drazan, 762 F.2d at 59 (emphasis added).

2. The District Court Applied the Proper Claim Accrual Test

The United States contends that the district court misinterpreted our FTCA claim accrual jurisprudence when deciding whether the Act’s statute of limitations barred the Arroyos’ claim. Specifically, the government argues that the district court erred by predicating the accrual of the Arroyos’ claim on the subjective knowledge of the Arroyos and failing to consider whether the Arroyos’ • claim accrued at an earlier point in time under the objective, reasonable person inquiry.

We reject the government’s argument and find that the district court applied the proper claim accrual rule. As discussed above, a district court deciding when an FTCA claim accrued must conduct a two-part inquiry to determine when the plaintiff knew about “the government cause ... or when a reasonably diligent person ... would have discovered the government cause.” Drazan, 762 F.2d at 59. It is clear that the district court considered whether the Arroyos had actual knowledge that Christian’s injuries were attributable to an act or omission of a government doctor. See 2010 WL 1437925 at *2-9 (N.D.Ill. April 2, 2010) (stating that there was “no evidence that Plaintiffs had actual knowledge that there was iatrogenic harm at the time that the hospital discharged Christian”). It is similarly clear that the district court considered the objective component of the inquiry. Id. at *9 (“A reasonable person in the Plaintiffs’ position would have had no reason to suspect that something could have prevented Christian’s injury.”).

3. The District Court’s Factual Determinations Regarding When the Arroyos’ Claim Accrued Were Not Erroneous

The United States contends that, even if the district court considered the correct limitation and accrual rules, we should reverse the court’s judgment because its analysis of when Plaintiffs’ claims accrued contained several erroneous factual determinations. Reiterating many of the arguments they presented to the district court, the government argues that the Arroyos’ claim accrued in the end of June or the beginning of July of 2003, when they were informed by the hospital that Christian had suffered brain injuries due to a bacterial infection that he contracted from exposure to his mother’s blood during birth. The government argues that the knowledge that Christian had been injured by an infection while in the care of the hospital was sufficient to cause their FTCA claim to accrue. If accrual occurred during this period, then the Arroyos’ claim would be barred by the FTCA’s statute of limitations because their state court suit, filed on December 5, 2005, was not filed within two years of the date of accrual.

The district court rejected the government’s assertion that the Arroyos’ claim accrued in mid-2003, stating that the government had failed to produce evidence establishing that the Arroyos had reason to believe that Christian’s injuries were caused by his doctors or that a reasonable person in the Arroyos’ position would have known enough information at this time to “prompt a deeper inquiry into a potential cause.” Rather, the district court found that the Arroyos’ claim accrued either on July 4, 2004 (the date that Mrs. Arroyo gave birth to her second son and, presumably, was given antibiotics prior to delivery), or within a few months of that date, when the Arroyos watched a lawyer’s television commercial that stated that injuries such as Christian’s are often due to physician malpractice.¹ The court found that, even if it assumed that the Arroyos’ claim accrued on the earlier of these two dates, their suit would have been timely, given the FTCA’s savings provision and the fact that the Arroyos filed a civil suit in state court in December of 2005.²

As discussed earlier, our precedents state that a plaintiffs knowledge of the non-governmental causes of his injury is insufficient to start the statute of limitations running on his FTCA claim. It is only when a plaintiff obtains sufficient knowledge of the government-related cause of his injury that his claim accrues. See Drazan, 762 F.2d at 59 (holding that the statute of limitations does not begin to run until the plaintiff discovers the “government link” in the causal chain); see also Goodhand, 40 F.3d at 212; Nemmers, 795 F.2d at 629. Hence, the only issues before us are whether the district court erred when it determined the date that: (A) the Arroyos knew; or (B) a reasonable person in the Arroyos’ position would have known enough to suspect, that actions taken by Christian’s doctors contributed to his injuries.

The district court did not err in finding that the Arroyos did not actually know that there was a doctor-related cause until 2004. As stated earlier, the only information that the hospital conveyed to the Arroyos was that Christian’s injuries were due to a blood infection that his mother had transmitted to him at birth. The fact that the Arroyos knew about the biological cause of Christian’s injuries, however, does nothing to establish that the Arroyos knew that there was also a malpractice-related cause. The record is devoid of evidence establishing that the Arroyos knew that the hospital’s doctors should have given Christian and his mother antibiotics, that Christian’s infection was left untreated following his birth or that prompt treatment of his infection would have reduced or prevented the infection’s damage. In short, the government failed to present any evidence establishing that, at the time of Christian’s discharge, the Arroyos possessed knowledge that was sufficient to cause their claim to accrue.

We also find that the district court did not err in finding that a reasonably diligent person in the Arroyos’ position in 2003 would have lacked information sufficient to prompt a deeper inquiry into whether Christian’s doctors caused his injuries. In order to prevail on its statute of limitations defense, the government needed to show that a reasonable person, when informed that his or her infant’s injuries were caused by an infection that had been transmitted during birth, would have searched for potential iatrogenic causes for the injuries. The United States did not meet this burden. First, the government failed to present any evidence establishing that injuries caused by birth-transmitted infections are typically caused by doctors. Second, and even more significantly, the government neglected to argue that iatrogenic causes are frequent enough that a reasonably diligent person would have investigated whether there was a doctor-related cause for Christian’s injuries. While these omissions, on their own, provide more than sufficient grounds for affirming the district court’s decision, we also note that courts have found that it is reasonable for individuals presented with similar information about the etiology of birth-related injuries to assume that the hospital’s staff did everything they could to prevent the injury. See, e.g., Valdez ex rel. Donely v. United States, 518 F.3d 173, 180 (2d Cir.2008) (“When a doctor reports that a person is ‘born with’ a problem, it could reasonably have the effect of leading a person to believe that the injury was completely unavoidable.”); Rice v. United States, 889 F.Supp. 1466, 1471 (N.D.Okl.1995).

We reject the government’s invitation to find that all reasonable persons who suffer injuries while under the care of medical professionals assume that their injuries can be attributed to shortcomings in the care they received.³ This court has previously considered whether the law requires individuals to make this assumption and concluded that it does not, recognizing the “ghoulish consequence[s]” that would follow from adopting such a rule. Drazan, 762 F.2d at 59 (stating that such a rule would cause any individual who “suffered pain or illness ... in a Veterans Administration hospital ... [to] request his hospital records to see whether diagnosis or treatment might have played a role in his distress,” even if such an individual lacked any reason to think a doctor’s actions contributed to his injuries); see also Nemmers, 795 F.2d at 631-32 (“[T]he statute of limitations should not be construed to compel everyone who knows of an injury to scour his medical records just in case the government’s physician did something wrong.”). As discussed above, our previous decisions establish that injuries can have multiple causes and that a plaintiffs claim only accrues when he obtains sufficient knowledge of the government-related cause of his injury.

The government has not presented us with reasons to abandon our prior holdings — its arguments resemble those we rejected in our earlier cases and it has not presented us with evidence discrediting our assumptions about what reasonable people assume when injured while in the care of doctor. Hence, we stand by our decisions in Drazan and Nemmers. A rule that forces patients to scour their records whenever they receive medical treatment and to initiate preemptive litigation is inequitable, inefficient and — most importantly — contrary to the commonsensical intuitions that “reasonable man” tests are supposed to embody.⁴

In its appeal, the government erroneously contends that the district court held that the Arroyos’ claim did not accrue until they had enough information to suspect that the negligence of medical practitioners caused Christian’s injuries. They further claim that the district court’s holding renders the statute of limitations meaningless for claims such as the Arroyos’, as it would mean that plaintiffs’ claims would never accrue unless they knew that their injuries resulted from a negligent act. If the district court had analyzed the claim accrual issue in this manner, the government’s arguments would, of course, be correct. However, as discussed above, we do not believe that the government’s reading of the district court’s opinion is plausible.

In closing, we take a moment to clarify an issue that many have seemed to find confusing — the distinction between (1) injuries that have a doctor-related cause and (2) injuries that are caused by a doctor’s negligence. It is always the case that an injury that is caused by a doctor’s negligence will have a doctor-related cause. The converse, however, is not true. There are many situations in which an individual’s injury has a doctor-related cause, but is not the result of a doctor’s negligence.⁵ When determining the accrual date of a plaintiffs FTCA malpractice claim, courts must decide when the plaintiff knew enough (or should have known enough) to suspect that their injury had a doctor-related cause. United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Drazan, 762 F.2d at 59. But, accrual does not wait until the plaintiff learns that their injury was caused by a doctor’s negligence. Kubrick, 444 U.S. at 123, 100 S.Ct. 352.

III. Conclusion

For the reasons stated above, the ruling of the district court is Affirmed.

1 . There is some uncertainty as to the exact date that the Arroyos' viewed the lawyer's television commercial. However, the district court determined, and it is apparently undisputed by both parties, that this event occurred roughly three months after the birth of the Arroyos’ second son, sometime in October of 2004.

2 . Both parties agree that the Arroyos filed their administrative claim while their state suit was pending and, hence, that the date of the commencement of the state suit is the operative date for statute of limitation purposes.

3 . We note that the accrual rule proposed by the government has been endorsed by the Ninth Circuit in Herrera-Diaz v. United States, 845 F.2d 1534 (9th Cir. 1988), Fernandez v. United States, 673 F.2d 269 (9th Cir. 1982) and subsequent cases. A number of our sister circuits have joined us in rejecting this interpretation of Kubrick. See, e.g., Hertz v. United States, 560 F.3d 616, 619 (6th Cir.2009); Valdez v. United States, 518 F.3d 173, 180 (2d Cir.2008); Green v. United States, 180 Fed.Appx. 310 (3d Cir.2006).

4 . The United States contends that rejecting its proposed rule will necessarily undermine the FTCA’s statute of limitations and open the door to decades-old claims being filed against the government. We reject this argument for several reasons. First, in the vast majority of situations, individuals who suffer an injury that is caused by the government — e.g., a broken leg due to being hit by a postal service vehicle — will immediately know of (or have reason to suspect) the governmental cause. Second, because of the claim accrual test’s objective component, the government can establish that the statute of limitations started to run on a claim by showing that a reasonable person would have discovered the governmental cause at an earlier date, a showing that will typically become increasingly easy to make as more and more time passes from the time of injury.

5 . Consider the following example: A patient with a congenital heart defect undergoes open heart surgery. Despite the fact that the surgeon performing the operation does a superb job, abiding by all relevant standards of care, the patient suffers a stroke during the surgery. In such a situation, the patient’s neurological injuries would have a doctor-related cause, but would not have been the result of negligence.