United States Court of Appeals For the First Circuit
No. 24-1844
BRAD O'BRIEN, Personal Representative of the Estate of Melissa
Allen,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Gelpí, Kayatta, Circuit Judges, and Smith,* District Judge.
Adam R. Satin, with whom Andrew C. Meyer, Jr. and Lubin & Meyer, P.C. were on brief, for appellant.
Kevin Benjamin Soter, with whom Brett A. Shumate, Acting Assistant Attorney General, Leah B. Foley, United States Attorney, and Dana Kaersvang, Attorney, Appellate Staff, Civil Division, were on brief, for appellees.
* Of the District of Rhode Island, sitting by designation. September 11, 2025 GELPÍ, Circuit Judge. Plaintiff-Appellant Brad O'Brien
("O'Brien") filed a wrongful death medical malpractice suit as the
personal representative of the estate of Melissa Allen ("Allen"),
who died eleven days after receiving medical care at Lowell General
Hospital ("LGH" or "the Hospital"). The suit alleged that LGH and
its providers -- including Dr. Fernando Roca ("Dr. Roca") -- were
negligent in the care of Allen, acts which O'Brien contends
resulted in Allen's death. The district court dismissed the suit
for failure to make timely presentment under the Federal Tort
Claims Act ("FTCA"). We affirm.
I. BACKGROUND
O'Brien is the surviving partner of Allen and the
personal representative of her estate. The tragic events leading
up to Allen's death are largely undisputed. On July 26, 2016,
Allen suffered multiple seizures at her home. She was brought to
LGH's emergency room and later admitted to the Hospital. Hospital
staff determined that Allen was seven months pregnant and suffering
from severe hypertension. Dr. Roca, an obstetrician, was on call
at LGH and attended to Allen. Dr. Roca determined it was necessary
to perform an emergency caesarian section and, subsequently,
delivered Allen's baby girl. Following the birth, an unresponsive
Allen was transferred to the intensive care unit where a brain
scan revealed "devastating neurological injury." Allen was then
flown by helicopter to a tertiary care hospital in Boston, where
- 3 - she died eleven days later. The cause of death was listed as
"intracranial hemorrhage and eclampsia."
In March 2021, O'Brien sued Dr. Roca and LGH in state
court. At the time Dr. Roca rendered care, he worked for Lowell
Community Health Center ("LCHC"), a center receiving federal
grants under 42 U.S.C. § 245b. Also at the time of the relevant
events, LCHC was a "deemed" Public Health Service ("PHS") program
for purposes of 42 U.S.C. § 233.1 Dr. Roca needed clinical
privileges at a nearby hospital as a condition of his employment;
he obtained those privileges at LGH. To maintain privileges, Dr.
Roca was required to participate in the Hospital's on-call rotation
system and treat incoming patients under the same.
Under the Federal Employees Liability Reform and Tort
Compensation Act ("the Westfall Act"), the government substituted
itself for Dr. Roca and removed the case to federal court. The
Westfall Act provides:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his . . . employment at the time of the incident out of which the claim arose, any civil action . . . commenced upon such claim in a State court shall be removed . . . to the district court of the United States . . . and the United States shall be substituted as the party defendant.
1 "Deeming" under the Public Health Service Act ("PHSA") refers to the process of granting federally funded health centers and their employees the same legal protections as employees of the PHS. See O'Brien v. United States, 56 F.4th 139, 148-49 (1st Cir. 2022).
- 4 - 28 U.S.C. § 2679(d)(2). The district court upheld substitution
and dismissed the case, holding that O'Brien's claims were
time-barred by the two-year limitations period under the FTCA.
O'Brien appealed.
On appeal, the government acknowledged its argument
incorrectly relied on the Westfall Act, which applies to government
employees, instead of the PHSA, which applies to health centers.2
The government argued that substitution was still proper, although
for different reasons than would have applied under the Westfall
Act. We vacated the substitution order and remanded given the
error "brought new issues into play and left gaps in the
evidentiary record." O'Brien, 56 F.4th at 141. On remand, the
government again moved for substitution, this time based on the
PHSA. On September 6, 2024, the district court granted the
government's motion and dismissed O'Brien's complaint. O'Brien
again appeals.
A. STANDARD OF REVIEW
We "review the grant of a motion to dismiss de novo,
accepting well-pled facts as true and drawing all inferences in
favor of the non-moving party." 3137, LLC v. Town of Harwich, 126
2 "The Westfall Act amended the FTCA to make its remedy against
the United States the exclusive remedy for most claims against Government employees arising out of their official conduct." Hui v. Castaneda, 559 U.S. 799, 806 (2010).
- 5 - F.4th 1, 8 (1st Cir. 2025) (quoting Rivera-Rosario v. LSREF2 Island
Holdings, Ltd., 79 F.4th 1, 4 (1st Cir. 2023)). "So, too, we
review de novo a district court's grant of a motion to substitute
the United States in lieu of a named defendant." O'Brien, 56 F.4th
at 145.
We also review scope of employment determinations under
the same de novo standard. McIntyre ex rel. Estate of McIntyre v.
United States, 545 F.3d 27, 40 (1st Cir. 2008) (citing Aversa v.
United States, 99 F.3d 1200, 1210 (1st Cir. 1996)).3
B. STATUTORY BACKGROUND
The PHSA, 42 U.S.C. § 233, "protects PHS employees from
personal liability for injuries resulting from the performance of
medical services rendered within the scope of their employment."
O'Brien v. Roca, 719 F. Supp. 3d 158, 161 (D. Mass.),
reconsideration denied sub nom., O'Brien v. Lowell Gen. Hosp., 749
F. Supp. 3d 209 (D. Mass. 2024) (citing 42 U.S.C. § 233(a)).
Pursuant to the PHSA, suits brought against employees of public
health centers receiving federal funds are governed under the FTCA,
28 U.S.C. § 1346. Thus, when an action is filed against a PHS
employee in state court, the PHSA requires the government to be
3 We have held that "motions to dismiss based on the FTCA's statute of limitations should now be brought under Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim upon which relief can be granted), or considered pursuant to Rule 56 (summary judgment)." Morales-Melecio v. United States (Dep't of Health & Hum. Servs.), 890 F.3d 361, 367 (1st Cir. 2018).
- 6 - substituted as the defendant and the case to be removed to federal
court upon the Attorney General's certification that the PHS
employee acted within the scope of his or her employment. See 42
U.S.C. § 233(c). In other words, "[w]hen federal employees are
sued for damages for harms caused in the course of their
employment, the [FTCA] generally authorizes substitution of the
United States as the defendant." Hui, 559 U.S. at 801. As we
explained in Morales-Melecio v. United States (Dep't of Health &
Hum. Servs.):
The FTCA constitutes a limited waiver of [the United States'] sovereign immunity, allowing, in relevant part, for damages claims to be brought against the United States for any "injury or loss of property, or 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."
890 F.3d 361, 366 (1st Cir. 2018) (quoting 28 U.S.C.§ 1346(b)(1)).4
The Federally Supported Health Centers Assistance Act of 1995
("FSHCAA") amended the PHSA to allow for certain health care
entities to apply for federal funds and to extend, to health
centers, the "same PHSA and FTCA protections as are enjoyed by PHS
"In lieu of personal liability, the statute makes available 4
a tort action against the United States under the FTCA as the 'exclusive' remedy for certain 'act[s] or omission[s]' on the part of PHS employees resulting in personal injury or death." O'Brien, 56 F.4th at 147 (alterations in original) (quoting 42 U.S.C. § 233(a)).
- 7 - employees." See O'Brien, 56 F.4th at 148 (citing 42 U.S.C.
§ 233(g)(1)(A)). "[A] federally funded health center or any
particular individual associated with it must be 'deemed to be an
employee' of the PHS" in order for the protections to apply. Id.
These deeming determinations are made by the Secretary of the
Department of Health and Human Services ("Secretary"). If deemed,
a health center is generally covered under the FTCA when treating
its own patients; however, deeming does not conclusively establish
liability protection for services rendered to someone who was not
a patient of the health center.5 Id. at 149. Covered entities
have to "comport with specific requirements laid out in 233(g) and
accompanying [HHS] regulations." Bray v. Bon Secours Mercy Health,
Inc., 97 F.4th 403, 407 (6th Cir. 2024)(citing 42 C.F.R. § 6.6).6
Further, an "act or omission [giving] rise to the claim"
must also have occurred while the defendant was "acting within the
scope of his office or employment." 42 U.S.C. § 233(a). The
5 "[T]he Secretary's annual 'deeming' determination does not conclusively establish PHSA and FTCA coverage with respect to a particular lawsuit when -- as in this case -- an action is brought against a physician affiliated with a federally funded health center." In such a case, "coverage hinges on the circumstances in which care has been provided." O'Brien, 56 F.4th at 149. 6 "These requirements include that the entity be a covered entity; that the individual be a covered employee, contractor, or officer of that entity; and that the individual act within the scope of his or her employment. Additionally, coverage applies only to services related to grant-supported activities." Bray, 97 F.4th at 407 (citing 42 C.F.R. § 6.6).
- 8 - Attorney General determines whether to certify "that the defendant
was acting in the scope of his employment at the time of the
incident out of which the suit arose." Id. § 233(c). "If the
Attorney General advises [a] court that the defendant has been
'deemed' a PHS employee 'with respect to the actions or omissions'
giving rise to the plaintiff's claims, removal is in order."
O'Brien, 56 F.4th at 148 (citing § 233(l)(1)).
If the covered individual provided services to a
non-patient of the covered entity, however, malpractice liability
protection requires either: (1) a specific determination by the
Secretary as to the specific arrangement at issue pursuant to 42
C.F.R. § 6.6(d)7 or (2) that the services provided "fall squarely
7 The regulation provides: Acts and omissions related to services provided to individuals who are not patients of a covered entity will be covered only if the Secretary determines that: (1) The provision of the services to such individuals benefits patients of the entity and general populations that could be served by the entity through community-wide intervention efforts within the communities served by such entity; (2) The provision of the services to such individuals facilitates the provision of services to patients of the entity; or (3) Such services are otherwise required to be provided to such individuals under an employment contract or similar arrangement between the entity and the covered individual. 42 C.F.R. § 6.6(d).
- 9 - within" one of the listed scenarios the Secretary has already
categorically deemed covered under 42 C.F.R. § 6.6(e)(4). Bray,
97 F.4th at 407.
II. DISCUSSION
O'Brien makes four principal arguments on appeal.
First, he contends that the district court erred in holding that
the regulation promulgated by the Secretary did not violate the
PHSA's statutory scheme. Second, O'Brien argues that the district
court erred in finding that deeming extended to Dr. Roca's
treatment of Allen. Third, O'Brien believes his time to file a
claim did not begin accruing until he first spoke to his lawyer in
September 2017. Lastly, O'Brien contends that, even if his claim
accrued before he spoke with his lawyer, the FTCA's Savings Clause
saves his claim. We analyze each argument seriatim, concluding
that the district court correctly allowed the substitution of the
United States as the defendant and properly dismissed the case.
We, thus, affirm.
A. The Regulation's Validity
As noted, by statute, health centers and their employees
are generally deemed federal employees only when providing
services to individuals who are health center patients.8 The
8The statute provides: "The deeming of any entity or officer . . . of the entity to be an employee of the [PHS] . . . shall apply with respect to services
- 10 - Secretary's regulation includes two methods for determining
whether FTCA coverage extends to non-patient services:
The first method allows a health center or affiliated individual to submit an "application . . . seek[ing] a particularized determination" that coverage extends to the care at issue. The second method involves a predetermination by the Secretary that FTCA coverage extends in certain circumstances without any need for a "specific application" on the part of the entity or affiliated individual. To qualify for this predetermined coverage, the care rendered or the "activity or arrangement in question" must "fit[ ] squarely" into one of a number of scenarios described in the regulation.
O'Brien, 56 F.4th at 149 (alterations in original) (citations
omitted) (citing 42 C.F.R. § 6.6(e)(4)). Where the activity or
arrangement does not fit squarely into one of the scenarios, an
additional "particularized determination of coverage" application
is required. 42 C.F.R. § 6.6(e)(4).
When reviewing an application, the Secretary determines
whether provision of services to the relevant non-patient meets at
least one of the three statutory criteria under 42 C.F.R.
§ 6.6(d).9 Those criteria are that the treatment must, in the view
of the Secretary, "benefit[] patients of the entity and general
provided . . . (i) to all patients of the entity, and (ii) subject to subparagraph (C), to individuals who are not patients of the entity." 42 U.S.C. § 233(g)(1)(B). 9 The regulation goes on to list examples of specific scenarios that fall within the scope of paragraph (d). See 42 C.F.R. § 6.6(e)(4)(i)-(iv).
- 11 - populations that could be served by the entity," "facilitate[] the
provision of services to patients of the entity," or be "otherwise
required under an employment contract (or similar arrangement)."
42 U.S.C. § 233(g)(1)(C). For coverage of medical services
provided to a non-patient, the federally funded health center
(generally) must submit an application to HHS. See id.
§ 233(g)(1)(D).
The government tells us that the care provided in the
underlying facts of this case falls under 42 C.F.R.
§ 6.6(e)(4)(ii), "Hospital-Related Activities." O'Brien
challenges the legality of this provision, arguing that the issuing
of automatic or "blanket" pre-deeming -- without the required
documents supporting individualized extension of coverage or
pre-requisite review -- violates the PHSA and is beyond the powers
afforded to the Secretary. In making this argument, O'Brien says
deeming of non-clinic patients is inappropriate until after the
Secretary has reviewed a particularized application for the care
in question. Thus, on this reading of the statute, O'Brien insists
the district court erred in upholding the regulation as
permissible.
By contrast, the government contends that the district
court correctly concluded predeterminations are consistent with
the PHSA. The government argues the statute does not require
health centers to submit "additional, unnecessary applications and
- 12 - information" for particularized determinations of coverage for
treatment of non-patients during certain commonly recurring
situations. It counsels that a periodic hospital call required
for hospital admitting privileges, like Dr. Roca's treatment of
Allen, is covered. Anything more would be too "impractical" and
"burdensome" for hospitals and health centers where they would
need to try to foresee and capture all possible future incidents.
The Secretary is given discretion to determine the form and manner
of deeming applications and, the government reasons, the decision
to pre-deem certain scenarios involving non-patients falls within
that discretion.
We agree with the government that the regulation is
consistent with the PHSA. Relevant here is 42 U.S.C.
§ 233(g)(1)(C)(iii), under which the care by a health center
employee (like Dr. Roca) to a non-health center patient (like
Allen) meets the deeming criteria since such services "[were]
otherwise required under an employment contract (or similar
arrangement) between the entity and an . . . employee . . . ." As
particularly relevant here, the implementing regulation reads:
"Periodic hospital call or hospital emergency room coverage is
required by the hospital as a condition for obtaining hospital
admitting privileges. There must also be documentation for the
particular health care provider that this coverage is a condition
of employment at the health center." 42 C.F.R. § 6.6(e)(4)(ii).
- 13 - The HHS mandates that any services described in
subsection (e)(4) are already covered -- or "pre-deemed" -- under
42 C.F.R. § 6.6(d) "without the need for specific application for
an additional coverage determination." 42 C.F.R. § 6.6(e)(4).
The statute provides that "[t]he Secretary may not" deem an entity
or its employee "and may not apply such deeming to services" to
non-patients "unless the entity has submitted an application for
such deeming to the Secretary in such form and such manner as the
Secretary shall prescribe." 42 U.S.C. § 233(g)(1)(D). The
district court correctly observed that "[t]he statute refers to
the term 'application' in the singular, indicating that at least,
but not necessarily more than, one application is required." The
statute, as written, does not require or specify the information
required for verification of coverage. 42 U.S.C. § 233(g)(1)(D).
We, thus, hold that the Secretary acted within his discretion in
implementing the regulation at issue.
B. Dr. Roca's Treatment of Allen
As relevant to O'Brien's next argument, "42 C.F.R.
§ 6.6(d) provides that '[a]cts and omissions related to services
provided to individuals who are not patients of a covered entity
will be covered only if the Secretary' makes a particularized
determination that the arrangement satisfies certain enumerated
objectives of the FSHCAA." Bray, 97 F.4th at 413. "Absent a prior
particularized determination as to the coverage of the arrangement
- 14 - by the Secretary, treatment of non-entity patients falls outside
the scope of coverage unless it fits within one of the
circumstances enumerated by § 6.6(e)(4)." Id. Section 6.6(e)(4)
lists four such circumstances. The relevant circumstance here is
described in Section 6.6(e)(4)(ii), which provides that "[t]here
must . . . be documentation for the particular health care
provider that [the relevant] coverage is a condition of employment
at the health center." 42 C.F.R. § 6.6(e)(4)(ii).
The district court found that Dr. Roca's treatment of
Allen met those conditions. In so holding, it stated that "Dr.
Roca's employment contract with [LCHC] required that he provide
on-call coverage at [the Hospital]." It, thus, found that Dr.
Roca's treatment of Allen was covered by the regulation because it
was (1) periodic and (2) "required by the hospital as a condition
for obtaining hospital admitting privileges."
On appeal, O'Brien argues that Dr. Roca's treatment of
Allen does not fit within the (e)(4) exception. He tells us that
Dr. Roca's employment contract only required that Dr. Roca obtain
admitting privileges at a hospital in the vicinity of LCHC and
that there is no mention of emergency room coverage. Therefore,
the argument goes, Dr. Roca was not contractually obligated to
care for non-health center patients under his employment
agreement, so his deeming (and its accompanying liability
protection) did not extend to his treatment of Allen, a non-health
- 15 - center patient. Without a contractual obligation to provide the
care in question, O'Brien argues that the statute required a
particularized deeming application -- in addition to LCHC's
initial deeming application -- to extend coverage of services
provided by Dr. Roca to a non-patient such as Allen.
Furthermore, O'Brien contends that the regulation
"explicitly requires there be documentation that Dr. Roca's
treatment of Ms. Allen . . . was a condition of Dr. Roca's
employment at the health center."10 O'Brien contends no such
documentation was ever submitted or approved. Given Dr. Roca was
not contractually obligated to care for Allen and no particularized
deeming application was submitted, O'Brien submits that the
district court erred in ruling that the United States was properly
substituted as the defendant under the Health Centers Act.
In response, the government argues no further deeming
application was needed to cover Dr. Roca's treatment of Allen.
The government reasons that Dr. Roca's contract required him to
participate in LCHC's "departmental call schedule," which
consisted of caring for LCHC patients admitted to one of the
approved hospitals within the center's vicinity -- a radius which
included LGH. For access to the hospital's facilities and
10Documentation that hospital emergency room coverage was a condition of Dr. Roca's employment at the health center is a factual pre-requisite for application of the on-call exception. 42 C.F.R. § 6.6(e)(4)(ii).
- 16 - authorization to admit LCHC patients, Dr. Roca needed to "maintain
[clinical] privileges" by "conform[ing] with . . . all rules,
regulations and by-laws promulgated by" the hospital. Indeed, one
of the hospital's regulations required that Dr. Roca participate
in LGH's hospital call rotation, which included treating non LCHC
patients. Therefore, the government argues, Dr. Roca's employment
at LCHC was contingent on his participation in LGH's hospital call
rotation, which required him to treat non-health center patients
such as Allen. Accordingly, the government reasons, Dr. Roca's
deeming extended to his care of Allen and was covered under 42
U.S.C. § 233(g)(1)(C).
We agree with the government's understanding. Dr.
Roca's employment contract with LCHC required he "participate in
the departmental call schedule" and, as such, stated that he "may
be asked to be on primary call wherein [he] will be responsible
for addressing all [LCHC] patient care responsibilities when such
patients seek services either by the telephone or when they present
at [LGH]." It also stated that the "[p]hysician shall maintain
privileges at a hospital within a reasonable vicinity of [LCHC]
throughout duration of this Agreement, including [LGH]."
Furthermore, Dr. Roca needed to "conform with
all . . . regulations and by-laws promulgated by [LCHC] and such
other hospitals at which Physician has clinical privileges."
- 17 - Thus, Dr. Roca was contractually obligated to maintain
admitting privileges at LGH, and, to do that, Dr. Roca needed to
treat non health center patients, like Allen, during required LGH
on-call rotations.
Bray v. Bon Secours Mercy Health, Inc. reached a similar
conclusion, with the Sixth Circuit holding that a physician's
conduct fell under the regulation where that conduct furthered
"grant objectives and the provision of care" to patients. 97 F.4th
at 413. That suit also involved a non-patient pregnant woman,
treated by a physician who was required by his contract to "obtain
and maintain hospital privileges as a part of [his] practice."
Id. at 408 (alteration in original). The Bray physician was also
required to "provide call coverage overnight and on weekends."
Id. Like the Bray record, the record here supports the conclusion
that LCHC required Dr. Roca to obtain and maintain admitting
privileges for on-call shifts -- like the one in which Dr. Roca
encountered Allen. Id. at 414.
The government has provided the necessary documentation
to show that LGH conditioned admitting privileges on satisfaction
of on-call coverage and that Dr. Roca acted in accordance with
that condition when treating Allen. Thus, the necessary
requirements under the § 6.6(e)(4)(ii) exception were met.
- 18 - C. Timeliness of FTCA Claim
We have held that legal questions regarding the
timeliness of an FTCA claim are reviewed de novo. Skwira v. United
States, 344 F.3d 64, 72 (1st Cir. 2003). We also review de novo
appeals involving "only the objective reasonableness of [a]
plaintiff['s] failure to discern at an earlier time both their
injury and its likely cause." Donahue v. United States, 634 F.3d
615, 623 (1st Cir. 2011); see Skwira, 344 F.3d at 72.
The FTCA's statute of limitations provides that "[a]
tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within
two years after such claim accrues." 28 U.S.C. § 2401(b). A tort
claim under the FTCA generally accrues at the time of the
plaintiff's injury. Donahue, 634 F.3d at 623; see also Gonzalez
v. United States, 284 F.3d 281, 288 (1st Cir. 2002). However, the
Supreme Court has held that a "discovery rule" exception may toll
the commencement of accrual in medical malpractice cases. Skwira,
344 F.3d at 73 (citing United States v. Kubrick, 444 U.S. 111, 113
(1979)); see also McIntyre v. United States, 367 F.3d 38, 52 (1st
Cir. 2004) (the discovery rule also applies to wrongful death
actions). The exception delays the commencement of the clock to
when "plaintiff discovers, or in the exercise of due diligence
should have discovered, the factual basis for the cause of action."
McIntyre, 367 F.3d at 52 (citation omitted); see also Donahue, 634
- 19 - F.3d at 624 (finding accrual begins once the generally available
information or the likely outcome of a reasonably diligent
investigation is sufficient for the plaintiff to reasonably know
they were injured).
This does not mean a plaintiff must know the "full extent
of the injury." Morales-Melecio, 890 F.3d at 369 (citation
omitted). In clarifying the knowledge prong of the discovery rule,
this court has held that a plaintiff does not need actual or even
suspected knowledge that the injury was negligently inflicted,
Donahue, 634 F.3d at 623, nor that the acts might constitute
medical malpractice, Kubrick, 444 U.S. at 125. Instead, plaintiffs
need only be reasonably diligent when, once they know of the injury
and its cause, they inquire within the medical and legal
communities as to whether the treatment was proper and conformed
to the generally applicable standard of care. Gonzalez, 284 F.3d
at 289 (citations omitted).11
We have held that the FTCA's statute of limitations is
triggered by "the discovery of sufficient facts about the injury
and its cause to prompt a reasonable person to inquire and seek
advice preliminary to deciding if there is a basis for filing an
Once a potential claimant is aware of the injury and the 11
identity of the parties who caused it, he is no longer "at the mercy of" the government and can seek counsel from doctors or lawyers regarding the injury and the care received. See Kubrick, 444 U.S. at 122.
- 20 - administrative claim against the government." Skwira, 344 F.3d at
78.12 In order for a plaintiff to take advantage of this discovery
rule, he or she must demonstrate that the "factual basis for the
cause of action [was] inherently unknowable at the time of the
injury" for his or her claim to be found timely. Gonzalez, 284
F.3d at 288-89. Anything less countervails the statute of
limitations' purpose in "requir[ing] the reasonably diligent
presentation of tort claims against the Government." Id. (citing
Kubrick, 444 U.S. at 123); see Skwira, 344 F.3d at 81 (finding the
factual basis of a claim is "inherently unknowable" when there are
no facts discoverable through the exercise of reasonable diligence
for a plaintiff to reasonably believe there may be a connection).
O'Brien argues his cause of action did not begin accruing
until September 6, 2017, when he first met with his lawyer.
Importantly, according to O'Brien, Allen's death certificate
listed "eclampsia as a consequence of pregnancy" as the cause of
death. O'Brien argues that because these were natural causes,
there was no indication that any errors in care caused Allen's
death. It was not until O'Brien met with his lawyer, he claims,
that he learned Dr. Roca's possible failure to properly treat the
In Skwira, where the family was told the victim died of 12
natural causes, the question was when, as a factual matter, was there sufficient information available to the plaintiffs to reveal a causal connection between the injury and the government. Skwira, 344 F.3d at 78.
- 21 - eclampsia within the required standards of care could have caused
the death of Allen. O'Brien contends that the district court erred
in holding that "accrual of the plaintiff's claim was not tolled
by the federal discovery rule." He also argues that absent
specialized medical expertise, it was reasonable to believe Allen
inevitably died naturally from the medical emergency that began
before being treated by Dr. Roca, not from any negligence in
treatment. Therefore, O'Brien reasons, time began to accrue when
he first learned, on September 6, 2017, that the doctor's actions
could be a probable cause of Allen's death. Since O'Brien had two
years to file, he argues his filing in June of 2019 was timely.
The government argues the accrual began at the time of
Allen's death on August 6, 2016, and the district court correctly
ruled that the discovery rule did not pause accrual of O'Brien's
claims until he spoke with an attorney. The government argues
that even if O'Brien could not have reasonably known about the
negligence, he failed to show reasonable diligence in inquiring
about the factual basis for a cause of action. The government
argues that O'Brien had two years to investigate the death of Allen
and file a claim. However, he waited over a year after Allen's
death to first speak with a lawyer. After meeting with his lawyer,
O'Brien still had eleven months to timely file his claim and
nevertheless failed to do so. Therefore, the government argues,
- 22 - O'Brien's claims expired in August 2018 and the filing in June
2019 was untimely.
In Sanchez v. United States, we stated: "[t]he death of
a generally healthy woman in childbirth is sufficiently rare in
this country today so as to make most reasonable people ask why it
happened." 740 F.3d 47, 53 (1st Cir. 2014). Furthermore,
retaining counsel following such a death "is a telling sign that
a reasonable person would have concluded that 'reasonable
diligence' was called for in order to determine whether there was
negligence." Id. So, too, in Morales-Melecio v. United States.
There, we held that appellant's claim was time-barred and rejected
the argument that the cause of death for the decedent -- a
thirty-six-year old man weighing over 370 pounds with a history of
hypertension -- was unclear because he was not "generally
healthy." 890 F.3d at 370. Moreover, we also held appellants had
sufficient facts about decedent's condition and care before their
receipt of the death certificate to alarm a reasonable person the
probable cause of death was connected to the defendant's treatment,
or lack thereof. Id.; cf. Cascone v. United States, 370 F.3d 95,
97 (1st Cir. 2004) (finding there "was nothing inherently
suspicious in [decedent's] reported death of an apparent heart
attack," where the death certificate listed the cause of death as
"chronic atrial fibrillation" (emphasis omitted)); K.B. v. United
States, No. 23-CV-12030-ADB, 2024 WL 2701969, *4 (D. Mass. May 24,
- 23 - 2024) (the transfer of a patient to Tufts Children's Hospital, a
tertiary hospital, created a reasonable basis to know an injury
related to the care had occurred, even without access to the full
medical records).13
O'Brien argues this reasoning does not apply as Allen
was not "generally healthy" because the medical emergency began
before she was admitted and treated by Dr. Roca. This argument
misses the mark. One medical emergency does not conclusively mean
Allen was not "generally healthy." There is no indication in the
record Allen previously suffered a difficult or high-risk
pregnancy, nor that she had a history of illness. O'Brien provides
no other basis for his argument and, so, is not entitled to tolling
of the statute of limitations.
D. Savings Clause
"The Savings Provision of the FTCA cannot resurrect the
plaintiff's claim[ but may] excuse[] a plaintiff's failure to
exhaust administrative remedies where" two circumstances are met.
Gonzalez, 284 F.3d at 291 n.11. Those two circumstances are that
"(1) the tort claim accrued within two years of the filing of the
13 In Cascone, the fact that the decedent was admitted for treatment of a different illness, rather than a cardiac condition, did not undermine the inference that he died of natural causes. The court held, "[i]t was perfectly reasonable for [the family of the decedent] to believe . . . that the [new illness] exacerbated his preexisting heart conditions or that his heart problems simply happened to flare up at that point, independently of his other illness." Cascone, 370 F.3d at 104 n.12.
- 24 - state court action and (2) the plaintiff presents the claim to the
appropriate federal agency within sixty days after the dismissal
of the action." Id.; see also 28 U.S.C. § 2679(d)(5).14 Here,
O'Brien fails at the first step: As explained above, he did not
file in state court within two years of accrual of his claims.
III. Conclusion
For the foregoing reasons, we affirm.
14 The clause reads:
(5) Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if— (A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action. 28 U.S.C. § 2679(d)(5).
- 25 -