In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1142 P.W., a minor, by DOMINQUE WOODSON, his mother and guardian, et al., Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA, Defendant-Appellee. ____________________
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:17-cv-00407-TLS-APR — Theresa L. Springmann, Judge. ____________________
ARGUED SEPTEMBER 18, 2020 — DECIDED MARCH 5, 2021 ____________________
Before SYKES, Chief Judge, and HAMILTON and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. Dominque Woodson, individually and on behalf of her minor son, P.W., brought this action against the United States under the Federal Tort Claims Act (“FTCA”) after P.W. sustained permanent injury to his left arm during birth. The United States, which is a party to this action because Ms. Woodson received pregnancy care at a 2 No. 20-1142
federally funded health center, moved to dismiss the action, or, in the alternative, for summary judgment, arguing that the Plaintiffs’ claims were untimely. The district court granted summary judgment to the United States, and we affirm. I. Background A. Factual Background Beginning in May 2013, and throughout the remainder of her pregnancy, Ms. Woodson received prenatal treatment from Dr. Keith Ramsey at NorthShore Health Centers. Dr. Ramsey wore a NorthShore nametag every time he treated her at NorthShore. During the course of treatment, Dr. Ram- sey informed Ms. Woodson that she would likely need to de- liver her baby by C-section because of the size of the baby. Ms. Woodson went into labor on December 7, 2013 and went to Anonymous Hospital to give birth to P.W. Consistent with the delivery plan that she discussed with Dr. Ramsey, Ms. Woodson requested a C-section. For some reason, Dr. Ramsey diverged from the delivery plan and in- stead delivered P.W. vaginally. According to Ms. Woodson, the delivery was “traumatic.” P.W. “got stuck on the way out” and had to be “yanked” out “with great force.” Once P.W. was born, Ms. Woodson noticed immediately that something was wrong with his left arm—it “just sagged down to his side” and he appeared unable to move it. Shortly after giving birth, Ms. Woodson raised her con- cerns about P.W.’s arm with Dr. Ramsey. Dr. Ramsey told Ms. Woodson that P.W.’s arm “may get better” and that he “may grow into it.” Contrary to Dr. Ramsey’s prediction, however, P.W.’s arm did not improve. After multiple follow-up visits with Dr. Ramsey and other healthcare providers over the No. 20-1142 3
course of several months, Ms. Woodson decided to consult an attorney about her son’s condition. Ms. Woodson retained Walter Sandoval as counsel on May 30, 2014, seeking to bring claims against Dr. Ramsey, NorthShore, and Anonymous Hospital. NorthShore is a Federally-qualified health center (“FQHC”) that receives federal funding and grant money from the United States Public Health Service under 42 U.S.C. § 1396d(l)(2)(B). NorthShore’s status as an FQHC means that its employees are deemed employees of the Public Health Ser- vice and covered against malpractice claims under the FTCA. 42 U.S.C. § 233(g). The federal government maintains an online public database listing recipients of federal funding whose employees may be deemed employees of the Public Health Service for purposes of FTCA coverage. See data.hrsa.gov/tools/ftca-search-tool. NorthShore appears in this database. Sandoval, however, failed to recognize NorthShore’s status as an FQHC. According to Sandoval, none of Ms. Woodson’s medical records “indicated that NorthShore was a federal clinic, that Dr. Ramsey was an em- ployee of NorthShore, or that Dr. Ramsey was a government employee.” Sandoval researched information in the public domain— Dr. Ramsey’s independent website, NorthShore’s website, and the United States Public Health Service’s website—none of which, according to Sandoval, represented Dr. Ramsey as an employee of NorthShore or identified NorthShore as a fed- eral clinic. Although NorthShore’s website listed Dr. Ramsey as one of its doctors, Sandoval did not understand that to mean that he was a NorthShore employee. And while NorthShore’s website had a logo with the label, “Community 4 No. 20-1142
Health Center FQHC,” Sandoval claims he was unaware of NorthShore’s federal status because the website did not spe- cifically indicate that the clinic was an “FTCA Deemed Facil- ity” when Ms. Woodson retained him as counsel. Sandoval also reviewed the Indiana Department of Insur- ance (“IDOI”) and Indiana Patient’s Compensation Fund online databases and learned that Dr. Ramsey and Anony- mous Hospital were “qualified” providers under the Indiana Medical Malpractice Act. Sandoval apparently misunder- stood this “qualified” status under Indiana law as precluding any potential federal status. B. Procedural Background On December 18, 2014, Plaintiffs filed a proposed com- plaint against Dr. Ramsey and Anonymous Hospital with the IDOI, alleging that Dr. Ramsey and Anonymous Hospital negligently rendered prenatal and delivery care.1 The IDOI responded to Sandoval on January 1, 2015, confirming that Dr. Ramsey and Anonymous Hospital were “qualified” pro- viders under the Medical Malpractice Act, and informing Sandoval that it had forwarded copies of the complaint to Dr. Ramsey and his insurance carrier. These claims remain pend- ing and no person or entity has appeared on Dr. Ramsey’s be- half. On December 16, 2015, counsel for NorthShore informed Sandoval that NorthShore was a federally funded health cen- ter, and that Dr. Ramsey was a federal employee. Plaintiffs
1 To bring an action for malpractice under the Indiana Medical Mal- practice Act, a plaintiff must first file a proposed complaint with the IDOI. Ind. Code § 34-18-8-4. No. 20-1142 5
then filed administrative tort claims with the Department of Health and Human Services (“HHS”) on February 19, 2016. HHS denied their claims on April 26, 2017. On October 26, 2017—nearly three years after P.W.’s birth—Plaintiffs filed this action in the United States District Court for the Northern District of Indiana, alleging negligent prenatal care and delivery of P.W. against both the United States and Anonymous Hospital. The United States moved to dismiss the complaint, or, alternatively, for summary judg- ment. Treating the United States’ motion as one for summary judgment, the district court determined that Plaintiffs’ claims accrued on December 7, 2013, the day P.W. was born. Plain- tiffs’ claims were therefore untimely under the FTCA’s two- year statute of limitations. The court entered judgment for the United States. This appeal followed. II. Discussion We review a district court’s grant of summary judgment de novo, considering all facts and drawing all inferences in the light most favorable to the nonmoving party. Hall v. City of Chicago, 953 F.3d 945, 950 (7th Cir. 2020). It is undisputed that the FTCA’s statute of limitations ap- plies and bars any claim against the United States “unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). The parties’ dispute here centers on when Plaintiffs’ claims ac- crued. The district court found that Plaintiffs’ claims accrued on December 7, 2013, the date Ms. Woodson gave birth to P.W. The district court’s application of the relevant claim accrual 6 No. 20-1142
rule is a legal determination, which we review de novo. Ar- royo v. United States, 656 F.3d 663, 667 (7th Cir. 2011). A. Claim Accrual Under the FTCA Plaintiffs presented their claims to HHS on February 19, 2016. Under the FTCA’s two-year statute of limitations, Plain- tiffs’ claims are therefore untimely if they accrued before Feb- ruary 19, 2014. There are two ways for a claim to accrue under the FTCA—one subjective and the other objective. An FTCA claim accrues when either: “(1) the individual becomes subjectively aware of the government’s involvement in the injury, or (2) the individual acquires information that would prompt a reasonable person to inquire further into a potential government-related cause of the injury, whichever happens first.ʺ E.Y. ex. rel. Wallace v. United States, 758 F.3d 861, 866 (7th Cir. 2014). In other words, “[a] plaintiff’s claim accrues the first time the plaintiff knew, or a reasonably diligent person in the plaintiff’s 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.” Arroyo, 656 F.3d at 669. Plaintiffs contend that their claims did not accrue until May 30, 2014, the day they retained Sandoval as counsel. We disagree.2
2 The dissent takes issue with our willingness to decide a claim accrual
issue in the summary judgment context. It is worth noting, however, that it is not atypical for these issues to be decided at summary judgment. See Blanche v. United States, 811 F.3d 953 (7th Cir. 2016). No. 20-1142 7
As we explained in Blanche v. United States, 811 F.3d 953 (7th Cir. 2016), “[i]nstead of mechanically setting the date of accrual to coincide with the retention of counsel, the receipt of medical records, or any other event in the litigation pro- cess,” we ask when the plaintiff “had reason to suspect that the injury [the child] suffered related in some way to the med- ical treatment [s]he received.” Blanche, 811 F.3d. at 961 (alter- ations in original) (quoting A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 142 (2d Cir. 2011)). Contrary to her sug- gestion, Ms. Woodson’s retention of Sandoval on May 30, 2014, has no automatic significance, as the mere hiring of a lawyer is not a triggering event. See id. Particularly here, where Ms. Woodson did not require Sandoval’s review of the medical records to understand the traumatic delivery as a po- tential cause of P.W.’s injury (nor does she argue otherwise), the date that Ms. Woodson retained Sandoval is of little im- portance to our analysis. Instead, we apply the “discovery rule” and ask when Ms. Woodson discovered or should have discovered the cause of her injury. See id. Applying this rule, we agree with the district court that Plaintiffs’ claims accrued shortly after P.W. was born.3 In the course of Ms. Woodson’s prenatal care, Dr. Ramsey told Ms. Woodson that her son would likely require delivery by C-section because of his unusually large size. When it was
3 The dissent places significant weight on our conclusion that the claims accrued shortly after P.W.’s birth, rather than attributing Ms. Woodson’s inquiry notice to an exact moment in time. According to the dissent, this language is evidence of the “factual uncertainty” underlying the claim accrual date in this case. By Ms. Woodson’s own account, how- ever, she “knew something was wrong” with P.W.’s arm “[s]hortly after the delivery.” 8 No. 20-1142
time to give birth, however, Dr. Ramsey changed course and delivered P.W. vaginally without explaining his deviation from the delivery plan. Although this fact alone is insufficient, this unexplained change in course contributed to Ms. Wood- son’s mix of information that something was amiss. In addi- tion, Ms. Woodson herself described the delivery as “very traumatic”—P.W. “got stuck” in the birth canal during deliv- ery and had to be “yanked” out, seemingly because of his large size. Then, immediately after giving birth, Ms. Woodson looked at her son’s arm and “knew something was wrong.” She was worried enough to raise her concern with Dr. Ram- sey, who offered little solace, saying only that P.W.’s arm “may get better” and that he “may grow into it.” But as Ms. Woodson would soon discover, P.W.’s arm did not, in fact, get better. Instead, her instinct after the delivery that “some- thing was wrong with P.W.’s left arm” proved accurate. This case resembles Blanche, where we similarly held that the plaintiff’s claims accrued on the day she gave birth or shortly thereafter. In that case, the plaintiff gave birth to an 11.7-pound baby (larger than average birth weight) who got stuck in the birth canal during delivery. Blanche, 811 F.3d at 955. In addition, the child left the hospital with her arm in a splint. Id. at 956. We held that the plaintiff “had enough infor- mation shortly after [the child’s] birth to reasonably inquire into whether [the obstetrician] caused the injury by inducing labor and delivering the baby vaginally instead of through a C-Section.” Id. at 959. Contrary to Plaintiffs’ assertions, Ms. Woodson did not need specific information showing that Dr. Ramsey caused the injuries. Like the plaintiff in Blanche, Ms. Woodson had enough information shortly after she gave birth to P.W. to No. 20-1142 9
prompt her to inquire whether the manner of delivery caused P.W.’s injury. In fact, she did make an initial inquiry by rais- ing her concerns about P.W.’s arm with Dr. Ramsey. In Nemmers v. United States, 795 F.2d 628 (7th Cir. 1986), we recognized that traumatic birth experiences alone are not enough to start the running of the statute of limitations. In Nemmers, after a bench trial, the district court held that a child’s cerebral palsy and mental disability were caused by negligent medical treatment by physicians at a naval hospital before and after his birth. We clarified that the statute of limi- tations began to run when “a reasonable person would know enough to prompt a deeper inquiry into a potential cause … .” Nemmers, 795 F.2d at 632. Thus, the statute of limitations for the FTCA claim did not begin to run until the plaintiff (the child’s mother) learned that her doctor’s actions might have contributed to her child’s injury. Plaintiff’s knowledge of the traumatic birth alone was not enough to trigger the statute of limitations because it was insufficient to suggest to a reasona- bly diligent person that the complications at birth were a po- tential cause of the cerebral palsy and mental disabilities. In- stead, the statute of limitations started running several years later, when either another doctor informed her of the possi- bility that the birth caused the child’s injuries, or when she read a newspaper article about a child suffering from similar injuries known to have been caused by inadequate care dur- ing delivery. We remanded the case to the district court to de- cide which of those two events triggered the statute of limita- tions. We emphasize again here that a traumatic birth does not automatically trigger the statute of limitations. An unfortu- nate outcome of a medical procedure is not alone a triggering 10 No. 20-1142
event. Something more is required. Indeed, the law is not meant to encourage plaintiffs to “assume that their injuries can be attributed to shortcomings in the care they received.” Arroyo, 656 F.3d at 671. There must be other circumstances, as there are here, that would prompt a reasonable person to in- vestigate the potential cause of the injury. Here, Plaintiffs had those additional circumstances shortly after P.W.’s birth: De- spite acknowledging during Ms. Woodson’s prenatal care the risks of delivering an unusually large baby vaginally, Dr. Ramsey opted to do so anyway, ignoring his prior determina- tion that P.W. should be delivered by C-section; P.W. “got stuck” during delivery—something that could not have hap- pened if P.W. had been delivered by C-section; Ms. Woodson described the delivery as “traumatic”; P.W. was born with a visibly injured arm; and P.W. could not move his arm after birth. Unlike in Nemmers, where the child’s injury—cerebral palsy or muscular dystrophy—could not be confirmed until the child was 18 months old, P.W.’s injury was immediately evident—his left arm “just sagged down to his side” and he “could not move his left arm at all.” Plaintiffs have not iden- tified any other subsequent event that alerted Ms. Woodson to the government’s involvement in P.W.’s injury. “Once knowledge of the cause is available, any delay in pursuing the cause and developing a case rests with the would-be plain- tiff.” Nemmers, 795 F.2d at 632. The dissent takes issue with our holding because in its view, “[i]n prior birth-injury cases where we have found ‘something more,’ there has been much more.” This mischaracterizes our case law. In Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013), a case which the dissent cites as having had “much more” marking inquiry notice, the plaintiff had “obtained the pertinent medical records and given them No. 20-1142 11
to a lawyer to review.” Arteaga, 711 F.3d at 831. This was evidence of the plaintiff’s subjective awareness of the potential government-related cause of her child’s injury. But as we have explained, the standard for determining when a claim under the FTCA accrues “has two alternative tests: a subjective one focused on the plaintiff’s actual knowledge, and an objective one based on the knowledge of a reasonable person in the plaintiff’s position.” Wallace, 758 F.3d at 865 (emphasis added). Evidence that a plaintiff did, in fact, make a deeper inquiry into a potential government-related cause is not required to show that the plaintiff had enough information such that a reasonable person would have inquired further. The dissent’s reliance on Blanche is similarly misplaced. We noted there that the plaintiff’s decision to meet with an attorney two weeks after giving birth indicated her subjective belief that her doctor caused her daughter’s injury. But this fact was not dispositive, because “[r]egardless of [the mother’s] subjective beliefs, a reasonable person under the circumstances would have had enough information to inquire further into whether [the obstetrician] caused [the child’s] in- jury.” Blanche, 811 F.3d at 959. Plaintiffs further argue that even if Ms. Woodson had knowledge of the injury and suspected that Dr. Ramsey may have contributed to the injury on the day she gave birth, she could not have known at that time that Dr. Ramsey was a gov- ernment employee. Our decision in Arteaga largely forecloses Plaintiffs’ argument. We explained in Arteaga that when a plaintiff is “armed with such knowledge” of injury and a likely cause of that injury, “the prospective plaintiff should be able to discover within the statutory limitations period the 12 No. 20-1142
rest of the facts needed for drafting a complaint that will with- stand a motion to dismiss.” Arteaga, 711 F.3d at 831–32. “That the defendant is suable only under the Federal Tort Claims Act is one of those facts.” Id. “Members of the medical mal- practice bar should know enough to consult the [Public Health Service] website when approached by a prospective client.” Blanche, 811 F.3d at 962; Arteaga, 711 F.3d at 834. The district court properly determined that Plaintiffs’ claims accrued on December 7, 2013, shortly after P.W.’s birth. Plaintiffs did not present their claims to HHS until February 19, 2016, more than two years after the claims accrued. Plain- tiffs’ claims are therefore untimely. This is a sympathetic case, but the district court did not err. B. Savings Clause of the Westfall Act Under the FTCA’s “savings provision,” which Congress added to the FTCA through the Westfall Act, “a plaintiff’s claim will be considered timely if: (1) he filed a civil action that contained his claim within two years of his claim’s ac- crual; and (2) he presented his claim to the appropriate federal agency within sixty days of his civil suit’s dismissal.” Arroyo, 656 F.3d at 668; 28 U.S.C. § 2679(d)(5).4
4The government points out that, as a preliminary matter, a separate statute—42 U.S.C. § 233(g)—addresses federally funded health centers. This section, at least on its face, does not appear to foreclose application of the Westfall Act to federally funded health centers. See Helms ex rel. Taylor v. Atrium Health Care & Rehab. Ctr. of Cahokia, LLC, 2010 WL 3937606, at *2 (S.D. Ill. Oct. 5, 2010) (noting that “employees” for purposes of the Westfall Act include federally funded health centers and their employees) (citing Jacobs v. Castillo, 612 F.Supp.2d 369, 372 (S.D.N.Y. 2009)). We need not No. 20-1142 13
Plaintiffs argue that even if their claims accrued on Decem- ber 7, 2013, they are nonetheless timely under the savings pro- vision. Because Plaintiffs filed a proposed complaint with the IDOI under the Indiana Medical Malpractice Act in December 2014, well within the two-year statute of limitations, they as- sert that this action falls within the savings provision. Plain- tiffs, however, do not satisfy the second element of the savings provision because the IDOI never dismissed Plaintiffs’ claims, as required under 28 U.S.C. § 2679(d)(5)(B). Thus, the FTCA’s savings provision is of no use to Plaintiffs. C. Equitable Estoppel and Equitable Tolling In a last-ditch attempt to save their claims, Plaintiffs argue in the alternative that their claims qualify for equitable estop- pel or equitable tolling. Both arguments fail. For equitable estoppel to apply, the government must have engaged in “affirmative misconduct.” United States v. Bob Stofer Oldsmobile-Cadillac, Inc., 766 F.2d 1147, 1151 (7th Cir. 1985). Thus, if Dr. Ramsey or NorthShore had fraudulently concealed their “status in order to deceive potential plaintiffs into thinking the applicable statute of limitations longer than it is,” Plaintiffs’ claims might qualify for equitable estoppel, “which tolls a statute of limitations when for example the de- fendant took improper steps to delay the filing of the suit be- yond the statutory deadline.” Arteaga, 711 F.3d at 833. Plaintiffs have not identified any affirmative misconduct by Dr. Ramsey or NorthShore. Instead, Plaintiffs argue only that the physician-patient relationship creates a duty to
decide this issue here, however, as Plaintiffs’ argument fails on other grounds. 14 No. 20-1142
disclose federal employment status. But as we have explained before: “No physician, clinic, hospital, or other medical pro- vider is required to provide patients with detailed instruc- tions on how to sue the provider for malpractice.” Id. at 834. Neither Dr. Ramsey nor NorthShore had a duty to inform Ms. Woodson of their federal status—it is enough that NorthShore’s website disclosed its federal status and listed Dr. Ramsey as one of its doctors.5 Plaintiffs’ equitable tolling argument fares no better than their equitable estoppel argument. “Equitable tolling is re- served for rare instances in which a plaintiff was ‘prevented in some extraordinary way from filing his complaint in time.’” Blanche, 811 F.3d at 962 (quoting Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir. 2001)). “Generally, the plaintiff bears the burden to establish that (1) she ‘diligently’ pursued her claim; and (2) ‘some extraordinary circumstances’ pre- vented her from timely filing her complaint.” Id. (quoting Credit Suisse Securities (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012)). Plaintiffs cannot establish either element. NorthShore ap- pears in the relevant Public Health Service database. We have twice reminded the medical malpractice bar of this database. Blanche, 811 F.3d at 962; Arteaga, 711 F.3d at 834. Sandoval’s examination of other websites is unavailing given our direct guidance. In addition, the presence of an “FQHC” logo on
5Plaintiffs add that Dr. Ramsey engaged in fraudulent concealment because his personal website represented that he performed obstetrics in his private practice when he in fact did not. Dr. Ramsey never treated Ms. Woodson in his private practice, so this alleged misrepresentation has no bearing on her claims. No. 20-1142 15
NorthShore’s website is reason enough to reject Plaintiffs’ re- quest for equitable tolling. Arteaga, 711 F.3d at 833–34. In light of the Public Health Service database, “[i]f the lawyer fails in [his duty to determine the provider’s federal status], the rem- edy is not to punish the defendant by depriving him of the protection of the statute of limitations; it is for the plaintiff to sue the lawyer who misadvised him for legal malpractice.” Id. at 834. AFFIRMED. 16 No. 20-1142
HAMILTON, Circuit Judge, dissenting. We should reverse the summary judgment on the government’s statute of limi- tations defense. The factual uncertainty in this case is evident in the majority’s vague holding that plaintiffs’ claims accrued “shortly after” P.W.’s birth. A reasonable trier of fact could find that plaintiffs’ medical malpractice claims did not accrue within scarcely ten weeks after P.W.’s birth. More generally, we should not apply the statute of limitations so that a poor medical outcome immediately puts a patient on “inquiry no- tice,” meaning that she should quickly consult a lawyer to in- vestigate a possible claim of malpractice. The majority denies it is adopting that rule, but the denial is not consistent with the majority’s logic. I respectfully dissent. The general rule is that a tort claim against the federal gov- ernment accrues when the plaintiff discovers, or a reasonable person in the plaintiff’s position would have discovered, that she has in fact been injured by an act or omission attributable to the government. E.Y. ex rel. Wallace v. United States, 758 F.3d 861, 865 (7th Cir. 2014); Arroyo v. United States, 656 F.3d 663, 668 (7th Cir. 2011). We have also applied a standard of inquiry notice: a claim accrues “when an individual acquires infor- mation that would prompt a reasonable person to make ‘a deeper inquiry into a potential [government-related] cause.’” Arroyo, 656 F.3d at 669, quoting Nemmers v. United States, 795 F.2d 628, 632 (7th Cir. 1986). In Wallace we summarized the two standards, holding that “a plaintiff’s medical malpractice claim against the federal government accrues when either (1) the individual becomes subjectively aware of the government’s involvement in the in- jury, or (2) the individual acquires information that would prompt a reasonable person to inquire further into a potential No. 20-1142 17
government-related cause of the injury, whichever happens first.” 758 F.3d at 866, citing Arteaga v. United States, 711 F.3d 828, 831 (7th Cir. 2013); Arroyo, 656 F.3d at 669; and Drazan v. United States, 762 F.2d 56, 58–59 (7th Cir. 1985). How we apply the general standard of inquiry notice here has consequences both for the parties before us and more broadly for doctor-patient relationships. We have long tried to make clear that we do not expect patients with less-than- optimum outcomes to run to a malpractice lawyer: The relationship between doctor and patient is built on trust. Doctors have the obligation to care for their patients and the specialized knowledge to make good medical choices and to deliver effective care. Patients typically lack specialized medical knowledge and are unable to assess and treat their own maladies. They put their trust in doctors to provide competent med- ical care. And all should recognize that even the best medical care cannot guarantee a good out- come. A negative outcome of medical care is not proof of negligence. Given the complexities of the human body, its injuries and illnesses, and med- ical treatment, and the special relationship be- tween doctor and patient, the law should not en- courage patients to assume their doctors are respon- sible for negative outcomes, let alone penalize pa- tients who do not turn on their doctors at the first sign of trouble. Wallace, 758 F.3d at 867 (emphases added); accord, Arroyo, 656 F.3d at 671–72 (reiterating circuit’s rejection of a rule requiring “all reasonable persons who suffer injuries while under the 18 No. 20-1142
care of medical professionals [to] assume that their injuries can be attributed to shortcomings in the care they received”); Nemmers, 795 F.2d at 631 (“the 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”); Drazan, 762 F.2d at 59 (re- jecting rule that would have the “rather ghoulish conse- quence” of requiring such investigations). The majority strays from these sound precedents. It ap- plies the inquiry notice standard in an extraordinarily harsh way, and on summary judgment, no less. It penalizes a first- time mother for not realizing, within scarcely ten weeks of her baby’s birth, that she should find help to investigate whether her baby had been injured by malpractice. For jaded lawyers and federal judges, perhaps the need for investigation seems obvious—especially with the benefit of hindsight. Yet that is not the standard. We need to focus on the reasonable patient, in the situation she faced just after giving birth. And we need to keep in mind the trust at the heart of the doctor-patient re- lationship. P.W. was born on December 7, 2013, which is the earliest arguable date of accrual. His mother consulted and retained a medical malpractice lawyer on May 30, 2014, which is the lat- est arguable date of accrual. She was on inquiry notice by then. The critical date for the statute of limitations falls in the middle of that five-month stretch: February 19, 2014. Plaintiffs served their FTCA notice of claim two years later, on February 19, 2016. Without picking a specific date or event that started the clock, the majority holds as a matter of law that Ms. Woodson had enough information “shortly after” she gave birth— but No. 20-1142 19
some unspecified time before February 19, 2014— to prompt her to inquire whether negligence on the part of Dr. Ramsey caused P.W.’s injury.1 The majority tells us that traumatic birth experiences alone are not enough to trigger the statute of limitations—“Some- thing more is required.” Ante at 9–10. I agree with that gen- eral principle. The problem is that the majority does not actu- ally require anything more. In footnote 3, the majority shows what it’s really doing. It ties the accrual “shortly after the de- livery” to Ms. Woodson’s knowledge that she “knew some- thing was wrong” with her baby’s arm then. That’s the nega- tive medical outcome, and nothing more. In trying later to identify “something more,” the majority bases its decision on facts that were already inherent in that “traumatic birth experience.” The majority highlights that P.W. “got stuck” during the delivery, that Ms. Woodson de- scribed the delivery as “traumatic,” and that P.W. was born with a visibly injured, immobile left arm. A moment’s reflec- tion shows that these circumstances are “the traumatic birth experience.” They cannot provide the “something more” than the traumatic birth experience that the majority tells us is not enough to start the statute of limitations clock. Two additional facts might be candidates for “something more,” but neither suffices. The first is that before birth, Dr. Ramsey had determined that P.W. should be delivered by C- section and then took a different course in the actual delivery. The second is that at some unspecified time after the birth, Ms.
1 The majority disagrees with the district court on this issue. The dis- trict court held that the cause of action accrued at birth, on December 7, 2013. 20 No. 20-1142
Woodson was worried about P.W.’s left arm and asked Dr. Ramsey about it. The doctor responded that his arm “may get better” and that “he may grow into it.” Separately or together, these were not enough to put a reasonable person in Ms. Woodson’s position on notice that she should investigate the possibility of medical malpractice, and certainly not beyond reasonable dispute. As we said in Wallace, the relationship be- tween doctor and patient is built on trust, even the best med- ical care cannot guarantee a good outcome, and patients need not turn immediately to malpractice lawyers. We can assume that Dr. Ramsey changed his mind about how to deliver P.W., but from his patient’s perspective, he was the specialist, the expert. Surely, a patient could assume, the doctor would have made that decision with his professional expertise. At the very least, a reasonable trier of fact could find that this change of course was not enough to put every rea- sonable person in Ms. Woodson’s position on notice that she needed to start thinking about a malpractice claim within a few weeks. As for Ms. Woodson’s question to Dr. Ramsey, any parent of course would ask what’s wrong and will it get better? This is the most basic and initial inquiry about a child’s health.2 Dr. Ramsey gave a vague reply, but the majority does not explain why that vagueness should have made every reasonable par- ent in Ms. Woodson’s position suspect malpractice and start investigating. Her knowledge that something was wrong with P.W.’s arm does not amount to knowledge or suspicion
2In fact, at one point the majority correctly characterizes Ms. Wood- son’s question to Dr. Ramsey as an “initial inquiry.” Ante at 9. No. 20-1142 21
of malpractice—at least not at that time. As noted, our prece- dents do not penalize patients for not turning on their doctors at the first sign of trouble. Wallace, 758 F.3d at 867; Arroyo, 656 F.3d at 671–72; Nemmers, 795 F.2d at 631; Drazan, 762 F.2d at 59. In prior birth-injury cases where we have found “some- thing more,” there has been much more. Something more than a difficult delivery and an injury. One easy marker of in- quiry notice has been an overt act indicating suspicion—for example, obtaining prenatal medical records or meeting with a lawyer—“that the injury had been preventable.” Arteaga, 711 F.3d at 831. For example, in Arteaga, we held that the claim had accrued by the time the plaintiff had “obtained the perti- nent medical records and given them to a lawyer to review.” Id. Similarly, in Blanche v. United States, 811 F.3d 953, 961 (7th Cir. 2016), the statute of limitations clock began running when the plaintiff met with an attorney within a week or two of her baby’s birth. Here, we have no similar action until nearly six months after birth and three months after the decisive date. In no case before today have we found that a birth-injury claim had accrued with as little foundation as the majority accepts in this case, and as a matter of law.3 At least as far back as 1985 in Drazan, 762 F.2d 56, we have rejected a rule that would encourage patients to assume that their doctors’ negligence caused poor outcomes—a rule that
3 Another portion of the Blanche opinion suggests that the birth injury alone was enough to start the statute of limitations clock. See 811 F.3d at 959. That portion is best viewed as dicta, inconsistent with our other cases saying that a poor medical outcome is not enough for accrual, and unnec- essary to the decision in light of the mother’s almost immediate consulta- tion with a lawyer. 22 No. 20-1142
would encourage “would-be plaintiffs to engage in paranoid investigations of everyone who has ever provided them with medical care.” Wallace, 758 F.3d at 867. Patients like Ms. Woodson, twenty-four years old and a first-time mother, should not be penalized for trusting their doctors and seeking their advice and counsel following a difficult delivery and an evident injury. Because a reasonable trier of fact could find that Ms. Woodson was not on notice to inquire into the possi- bility of medical malpractice until after February 19, 2014, I dissent from affirmance of summary judgment for the gov- ernment. And despite the majority’s disclaimers, future plain- tiffs and their counsel would be well-advised to take a cau- tious approach to the FTCA statute of limitations. Today’s de- cision creates a significant risk that the poor medical outcome alone may deemed sufficient to start the statute of limitations clock. Ms. Woodson’s case is frustrating for a second reason. Even under the majority’s view of the accrual of her claims, Ms. Woodson still consulted her medical malpractice lawyer more than a year and a half before the FTCA’s two-year limit expired. At least with the benefit of hindsight, it appears that her lawyer had ample time to look into the possibility that Dr. Ramsey might have been covered by the FTCA in delivering P.W. Plaintiffs’ attorney took a timely, critical step under Indi- ana law on December 18, 2014, just after P.W.’s first birthday, by filing a proposed malpractice complaint with the Indiana Department of Insurance. The department administers the re- view of such claims before a complaint may be filed in court against a covered provider. The proposed complaint was filed and served about a year before the FTCA statute of limitations No. 20-1142 23
expired. What the attorney did not do was figure out that Dr. Ramsey might have been negligent while acting as an agent of the federal government, so that a claim under the FTCA would need to be served within two years of accrual “shortly after” the December 7, 2013 birth.4 This case highlights some procedural traps for a medical malpractice plaintiff and her lawyer. Dr. Ramsey’s working situations epitomize the complexity of modern delivery of health care. While he cared for Ms. Woodson, he was wearing as many as ten different figurative hats when he practiced medicine. His resumé and deposition testimony indicate: (a) that he had his own private practice covered by a private in- surance company, (b) that he was employed by NorthShore and covered by the FTCA, (c) that he was employed by the State of Illinois (without insurance) and by a hospital in Illi- nois with another insurer, and (d) that he was a staff physician for at least four hospitals in northwest Indiana and (e) that he was a volunteer at four or five other institutions. To compli- cate matters more, Dr. Ramsey testified that his insurance cov- erage and authority under Indiana and Illinois may have been limited to gynecology, without obstetrics, and that although his private website listed obstetrics as a specialty, that was a mistake. We must assume for now that Dr. Ramsey was negligent in delivering P.W. But it matters, and matters a lot, whether
4 Plaintiffs have offered evidence that (a) shortly after the proposed complaint was filed with the state agency, Dr. Ramsey, his private insurer, and the Office of the United States Attorney all recognized that the FTCA could apply, but (b) none told plaintiffs’ attorney or even hinted at that possibility until it was too late for him to file a timely complaint according to the district court’s and possibly the majority’s analyses. 24 No. 20-1142
he was negligent as an employee or agent of a federal com- munity health clinic, as a private practitioner, or as a member of the medical staff of the still-anonymous hospital where P.W. was born, or perhaps as two or all three. That threshold question may require a trial to answer. The answer may de- termine the right procedures, the right forum(s), the choice of the governing law, and the available insurance and damages. I agree with the majority that plaintiffs’ attorney could have and should have ascertained well before the two-year period expired that in caring for Ms. Woodson and her baby, Dr. Ramsey might have been covered at least in part under the FTCA. The attorney should have recognized that Dr. Ram- sey treated Ms. Woodson before the birth at NorthShore, that NorthShore’s website had a logo with the label “Community Health Center FQHC,” and that NorthShore’s website listed Dr. Ramsey as one of its doctors. Even if the attorney was briefly led astray by Dr. Ramsey’s and the anonymous hospi- tal’s status under the Indiana Department of Insurance pro- cess, he had time to realize that the state malpractice processes might not cover all possibilities and to correct course. That did not happen. We do not yet know what the final consequences will be for plaintiffs, their lawyer, and the defendants. In this vague and complex area of law, the stakes are high. As we said in Arteaga: “No physician, clinic, hospital, or other medical provider is required to provide patients with detailed instructions on how to sue the provider for malpractice.” 711 F.3d at 834. Plaintiffs’ lawyers must educate themselves on the relevant statutes of limitations, public health databases, and case law—both federal and state. See Blanche, 811 F.3d at 962; Arteaga, 711 F.3d at 834–35. If they do not, their clients may be left with no recourse against a negligent doctor so that they No. 20-1142 25
can pursue only a negligent lawyer. It’s too early to know whether that will be these plaintiffs’ only recourse. We are told that plaintiffs’ claims are still pending before the Indiana Department of Insurance as a prelude to going to state court. Relief may be available in those non-federal forums, particu- larly since, as I understand plaintiffs’ case, their focus is not on prenatal care at NorthShore but on P.W.’s delivery in the hospital. Still, in state court the defendants will have obvious incentives to point any blame toward Dr. Ramsey’s federal work. P.W. just turned seven years old, but unfortunately, the litigation over his birth injuries may have barely begun.