Gabriela Arteaga v. United States ( 2013 )

  •                               In the
    United States Court of Appeals
                   For the Seventh Circuit
    No. 12-3189
    G ABRIELA A RTEAGA, individually and
    as the representative of I.G., a minor,
                 Appeal from the United States District Court
            for the Northern District of Illinois, Eastern Division.
                No. 10 C 7767—Rebecca R. Pallmeyer, Judge.
         A RGUED F EBRUARY 11, 2013—D ECIDED A PRIL 1, 2013
       Before E ASTERBROOK, Chief Judge, and P OSNER and
    T INDER, Circuit Judges.
      P OSNER, Circuit Judge. The plaintiff in this medical
    malpractice case is the mother of a child who was
    injured during birth. The district court dismissed the
    suit as barred by the provision of the Federal Tort
    Claims Act that requires that the claim on which a
    suit is based be filed with the appropriate federal
    2                                                 No. 12-3189
    agency within two years after the claim arose. 28 U.S.C.
      The suit accuses the Erie Family Health Center, where
    the mother received prenatal care, of neglecting symp-
    toms indicating that at birth the baby would weigh too
    much for a vaginal delivery to be safe, and of failing to
    advise the mother to have, therefore, a Caesarean section
    instead. In the course of the vaginal delivery the baby’s
    shoulder became stuck in the mother’s pelvis (the condi-
    tion known as shoulder dystocia) because the baby was
    oversized (she weighed 11 pounds). During the delivery
    nerves in the baby’s shoulder were injured (what is
    called a brachial plexus injury), resulting in a limited
    range of movement in her right arm, a condition that
    apparently has persisted.
      The child was born in July 2004. A few months later
    her mother obtained the medical records of the birth
    and resulting injury and consulted a lawyer. The lawyer
    recommended against suing. He told her he “did not feel
    that there could be any legal action taken against the
    hospital. . . . [I]t appeared that the midwife did every-
    thing she could for the delivery and what happened to
    [the child] was an accident.”
      Fifteen months later, in October 2006, the mother con-
    sulted another lawyer. The following month he agreed
    to represent her, but 16 months later, in February 2008,
    he withdrew. He did tell her before withdrawing that if
    she filed a tort suit under Illinois law the statute of limita-
    tions would be eight years because her injured child was
    a minor. 735 ILCS 5/13-212(b). But though correct the
    No. 12-3189                                              3
    advice was misleading. The extension of the statute of
    limitations for a suit on behalf of a child victim doesn’t
    apply to claims governed by the Federal Tort Claims
    Act, which lacks a comparable provision. McCall ex rel.
    Estate of Bess v. United States, 
    310 F.3d 984
    , 987-88 (7th
    Cir. 2002); Santos ex rel. Beato v. United States, 
    559 F.3d 189
    , 191-92 (3d Cir. 2009); Leonhard v. United States, 
    633 F.2d 599
    , 624 (2d Cir. 1980).
      In June of the following year (2009) the mother
    consulted a third lawyer, who quickly referred her to a
    fourth and final one. This lawyer agreed to take her
    case. He obtained a medical opinion, based on the
    child’s records, that Erie employees may have caused
    the child’s injury and if so that it had been because
    they’d been negligent. In March 2010 the mother filed
    a malpractice suit in an Illinois state court against the
    Erie Family Health Center and the Center’s nurse-mid-
    wives who had provided her prenatal care.
      Erie is a private enterprise, but it receives grant
    money from the U.S. Public Health Service. As a result, its
    employees are deemed federal employees. 42 U.S.C.
    §§ 233(g)(1)(A), (g)(4); U.S. Dep’t of Health & Human
    Services, Health Resources and Services Administration,
    “FTCA for Health Centers,”
    healthcenters/index.html (visited March 6, 2013);
    Lomando v. United States, 
    667 F.3d 363
    , 371-72 (3d Cir.
    2011); Dedrick v. Youngblood, 
    200 F.3d 744
    , 744-46 (11th
    Cir. 2000). Therefore tort suits against it or its em-
    ployees can be maintained only under the Federal
    Tort Claims Act. 42 U.S.C. §§ 233(a), (g)(1)(A). The
    plaintiff did not know this, and neither, it seems, did any
    4                                               No. 12-3189
    of the four lawyers until April 2010, when a lawyer
    from another firm told the fourth lawyer that he was in
    the wrong court. The lawyer filed the requisite federal
    administrative claim (a prerequisite to suing under the
    Tort Claims Act, see 28 U.S.C. § 2675(a)) with the De-
    partment of Health and Human Services the following
    month. In August 2010 the government removed the
    suit to the federal district court in Chicago. That court
    dismissed the suit, without prejudice, on the ground
    that the plaintiff had failed to exhaust her administra-
    tive remedies.
      She exhausted them later. The failure of the Department
    of Health and Human Services to act on her administra-
    tive claim within six months entitled her to treat it as
    denied, 28 U.S.C. § 2675(a), and she was able, by virtue
    of the Federal Employees Liability Reform & Tort Com-
    pensation Act, Pub. L. No. 100-694, 102 Stat. 4563 (1988)
    (the “Westfall Act”); see 28 U.S.C. §§ 2679(d)(2), (5);
    Celestine v. Mount Vernon Neighborhood Health Center, 
    403 F.3d 76
    , 82-83 (2d Cir. 2005), to refile the suit in the
    district court under the Federal Tort Claims Act. She did
    so in December 2010. But the government moved to
    dismiss the suit on the ground that the two-year statute
    of limitations had expired before the original malprac-
    tice suit had been filed and that therefore the administra-
    tive claim, treated by 28 U.S.C. § 2679(d)(5)(A) as if filed
    on the date on which the original malpractice suit had
    been filed, had been filed too late for her suit under
    the Federal Tort Claims Act to be timely.
       The plaintiff argues that her claim didn’t accrue (that
    is, the statute of limitations didn’t begin to run) until
    No. 12-3189                                                 5
    December 2009, when, she claims, she first learned
    that negligence by her prenatal caregivers at Erie had
    caused the baby’s injury. But all that is required to start
    the statute of limitations running is knowledge of the
    injury and that the defendant or an employee of the
    defendant acting within the scope of his or her employ-
    ment may have caused the injury. United States v. Kubrick,
    444 U.S. 111
    , 122-24 (1979); Arroyo v. United States, 
    656 F.3d 663
    , 668-69 (7th Cir. 2011); Massey v. United States, 
    312 F.3d 272
    , 276-77 (7th Cir. 2002); Skwira v. United States,
    344 F.3d 64
    , 74 (1st Cir. 2003). The plaintiff learned those
    things shortly after she gave birth. By the following
    year, 2005, having suspected from the start that the
    injury had been preventable and having obtained the
    pertinent medical records and given them to a lawyer
    to review, she made herself subject to the ancillary princi-
    ple that the statute of limitations begins to run
    not only when the prospective plaintiff discovers who
    caused the injury but also “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,”
    Drazan v. United States, 
    762 F.2d 56
    , 59 (7th Cir. 1985), or
    equivalently “when a reasonable person would know
    enough to prompt a deeper inquiry into a potential
    cause.” Nemmers v. United States, 
    795 F.2d 628
    , 631-32
    (7th Cir. 1986); cf. Garza v. U.S. Bureau of Prisons, 
    284 F.3d 930
    , 935 (8th Cir. 2002).
      The plaintiff argues that her claim didn’t accrue
    until she learned that Erie could be sued for malpractice
    only under the Federal Tort Claims Act. That argument
    6                                                  No. 12-3189
    fails too. Hensley v. United States, 
    531 F.3d 1052
    , 1056-57
    (9th Cir. 2008); Skwira v. United States, supra, 344 F.3d at 76-
    77; Gould v. United States Department of Health & Human
    905 F.2d 738
    , 743-45 (4th Cir. 1990) (en banc).
    The thinking that underlies Kubrick and the cases
    following it, which require knowledge only of injury
    and of the likely cause of the injury to start the
    statute of limitations running, is that armed with such
    knowledge the prospective plaintiff should be able to
    discover within the statutory limitations period the rest
    of the facts needed for drafting a complaint that will
    withstand a motion to dismiss. That the defendant is
    suable only under the Federal Tort Claims Act is one
    of those facts.
      The plaintiff’s first lawyer dropped the ball. The
    plaintiff dropped the ball too, by failing to consult
    another lawyer until October of the following year. That
    lawyer dawdled, eventually withdrawing, as we noted,
    in February 2008. It was not until June of the following
    year that she consulted a third lawyer, who referred her
    to her fourth and last lawyer.
      Statutes of limitations serve an important social pur-
    pose, and prospective plaintiffs have been assigned a role
    in enabling them to serve that purpose. The role is to be
    diligent. The plaintiff was diligent until July 2005,
    when having consulted a lawyer who declined the
    case she confided her continuing suspicions to a social
    worker, who advised her to get a second legal opinion. It
    was good advice. But it took the plaintiff 15 months to
    act on it by contacting another lawyer (presumably
    No. 12-3189                                                 7
    through the referral service suggested by the social
    worker). By the time he declined the case and she
    retained her current lawyer, it was a month short of
    five years after the birth. And by the time her tort suit
    was filed (in the wrong court, moreover), almost six
    years had elapsed.
      She argues in the alternative (to her argument that her
    claim did not accrue until she learned of Erie’s federal
    status) that the running of the statute of limitations
    was suspended (“tolled”) until she discovered that Erie
    could be sued for medical malpractice only under the
    Federal Torts Claims Act, which required that the suit be
    brought in federal court after exhaustion of federal ad-
    ministrative remedies. She argues that the Erie Family
    Health Center conceals its federal status and hence
    the shorter statute of limitations governing suits than
    the comparable state statute, eight years in the case of
    a minor. Tolling takes for granted when the statute of
    limitations began to run (the accrual date, when the
    plaintiff discovered or should in the exercise of diligence
    have discovered injury and cause), but arrests its running.
      There is a threshold question: whether a statute of
    limitations governing suits against a federal agency can
    ever be tolled. The government says no; it has sovereign
    immunity from being sued, and waivers of sovereign
    immunity must be explicit. United States v. Mitchell,
    445 U.S. 535
    , 538 (1980); Edwards v. U.S. Department
    of Justice, 
    43 F.3d 312
    , 317 (7th Cir. 1994); Freeman v.
    United States, 
    556 F.3d 326
    , 334-35 (5th Cir. 2009); cf. Irwin
    v. Department of Veteran Affairs, 
    498 U.S. 89
    , 95-96 (1990).
    Tolling doctrines normally are common law grafts on
    8                                               No. 12-3189
    statutes of limitations. If applied to suits against the
    government, they increase the scope of its liability by
    allowing suits to be filed after the prescribed time
    limit, and they thus curtail sovereign immunity.
       John R. Sand & Gravel Co. v. United States, 
    552 U.S. 130
    133-38 (2008), holds that statutes of limitations intended
    to preserve the government’s sovereign immunity are
    jurisdictional and therefore not subject to equitable
    tolling. But Irwin v. Department of Veteran Affairs, supra,
    498 U.S. at 95-96—inexcusably not cited by the govern-
    ment—holds “that the same rebuttable presumption
    of equitable tolling applicable to suits against private
    defendants should also apply to suits against the
    United States.” The opinion in John R. Sand & Gravel
    actually reaffirms the presumption that equitable tolling
    applies to statutes of limitations in suits against the
    government, while emphasizing that the presumption
    is rebuttable. 552 U.S. at 137-38.
      And just months ago, in another decision not cited by
    the government (though the decision had been rendered
    a month before the oral argument in this case), the Su-
    preme Court held that a deadline for exhausting admin-
    istrative remedies in a Medicare suit against the gov-
    ernment was not jurisdictional. “We inquire whether
    Congress has ‘clearly state[d]’ that the rule is juris-
    dictional; absent such a clear statement, we have
    cautioned, ‘courts should treat the restriction as nonjuris-
    dictional in character.’ ” Sebelius v. Auburn Regional
    Medical Center, 
    133 S. Ct. 817
    , 824 (2013). With regard to
    the Federal Tort Claims Act, the presumption that the
    No. 12-3189                                                    9
    deadline for exhausting remedies is not jurisdictional, far
    from being rebutted by clear statutory language, is con-
    firmed by such language: “the United States shall be
    liable, respecting the provisions of this title relating to
    tort claims, in the same manner and to the same extent as
    a private individual under like circumstances.” 28 U.S.C.
    § 2674 (emphasis added).
      We are mindful of conflicting views in the courts of
    appeal concerning whether the statute of limitations
    governing tort claims against the federal government can
    be tolled. See Arroyo v. United States, supra, 656 F.3d at
    679 (concurring opinion); compare Santos ex rel. Beato v.
    United States, supra, 559 F.3d at 196-97, with Marley
    v. United States, 
    567 F.3d 1030
    , 1036-37 (9th Cir. 2009). But
    we think the answer is that it can be tolled—and
    we doubt that the contrary approach has survived the
    Supreme Court’s decision in the Auburn Regional Medical
    Center case.
      Bolstering this conclusion is the fact that as a
    practical matter the discovery rule extends the statute of
    limitations by delaying the date on which it begins to
    run. Yet despite the rule’s being a common law rule
    rather than part of the Federal Tort Claims Act, it has
    long been accepted as fully applicable to suits under the
    Act. See, e.g., United States v. Kubrick, supra, 444 U.S. at 119-
    21 and n. 7; Arroyo v. United States, supra, 656 F.3d at 668;
    Litif v. United States, 
    670 F.3d 39
    , 43-44 (1st Cir. 2012);
    A.C.Q. ex rel. Castillo v. United States, 
    656 F.3d 135
    , 139-40
    (2d Cir. 2011).
     Were Erie concealing its status in order to deceive
    potential plaintiffs into thinking the applicable statute of
    10                                              No. 12-3189
    limitations longer than it is, we would be in the domain
    not of equitable tolling but of equitable estoppel, which
    tolls a statute of limitations when for example the de-
    fendant took improper steps to delay the filing of the
    suit beyond the statutory deadline, as by falsely promising
    not to plead the statute of limitations. See, e.g., Irwin
    v. Department of Veterans’ Affairs, supra, 498 U.S. at 96 and
    n. 4; Clarke v. United States, 
    703 F.3d 1098
    , 1101 (7th
    Cir. 2013); Shropshear v. Corporation Counsel for the City
    of Chicago, 
    275 F.3d 593
    , 595 (7th Cir. 2001); Ramirez-Carlo
    v. United States, 
    496 F.3d 41
    , 48-49 and n. 3 (1st Cir.
    2007); Premo v. United States, 
    599 F.3d 540
    , 547 (6th Cir.
    2010); Garza v. U.S. Bureau of Prisons, supra, 284 F.3d at
    935. Indeed we would have a classic case of “fraudulent
    concealment,” often used as a synonym for conduct
    giving rise to such an estoppel.
      But Erie didn’t conceal its federal status, though
    neither did it disclose it. The government argues that it
    did disclose it, by stating on its website that “Erie is a
    founding partner of [the Alliance of Chicago Community
    Health Services], which is comprised of four federally
    funded Chicago health centers.” That is what the website
    says today; the government should have told us what
    it said in 2005, when the plaintiff was first thinking
    about the possibility of suing. Actually the 2005 version
    was a bit more emphatic about Erie’s being federally
    funded. It said that “Erie was formally incorporated and
    in 1983, Erie was designated a Federally Qualified
    Health Center (FQHC) after receiving its first federal
    grant from the U.S. Department of Health and Human
    Services Bureau of Primary Health Care.” Erie Family
    No. 12-3189                                             11
    Health Center, Inc. “History” (archived version of the
    website as of Mar. 6, 2005),
    htm (visited March 20, 2013).
       But there is a gap between disclosing receipt of federal
    funding and revealing that as a recipient one can be sued
    for torts only under the Federal Tort Claims Act and not
    under state law. It’s not even clear what disclosure would
    be thought adequate to warn potential malpractice plain-
    tiffs of the legal consequences of Erie’s status. Would
    Erie have to disclose (and just on its website?) that
    anyone contemplating a malpractice suit should take
    note that he or she must sue in federal court and there
    face a two-year statute of limitations, subject however
    to equitable tolling and equitable estoppel, whatever
    those terms might mean to laypersons? No physician,
    clinic, hospital, or other medical provider is required
    to provide patients with detailed instructions on how
    to sue the provider for malpractice.
      Erie’s peculiar status under the Public Health Service
    Act is no secret. The website of the Public Health Service
    identifies all the health centers that by virtue of
    receiving funds from the Service may be sued for mal-
    practice only under the Federal Tort Claims Act. U.S.
    Dep’t of Health & Human Services, Health Resources
    and Services A dm inistration, “Search Deem ed
    Health Centers,”
    ftcahcdeemedentitysearch.html (visited March 17, 2013).
    Members of the medical malpractice bar should know
    enough to consult the website when approached by a
    prospective client.
    12                                                 No. 12-3189
      Prospective plaintiffs are charged with knowledge
    that there are such things as statutes of limitations, and
    so if you think you may have a legal claim it behooves
    you to consult a lawyer, and it behooves him to
    ascertain the applicable statute of limitations and
    advise you of it. Keef v. Widuch, 
    747 N.E.2d 992
    , 1000 (Ill.
    App. 2001). If the lawyer fails in this duty, the remedy
    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. “That an attorney’s conduct of the suit
    is inadequate may be grounds for a malpractice action
    against the attorney, but it is certainly no basis for re-
    quiring the defendant to pay the price of opposing coun-
    sel’s dereliction.” National Ass’n of Government Employees
    v. City Public Service Board of San Antonio, 
    40 F.3d 698
    709 (5th Cir. 1994); see also Link v. Wabash R.R., 
    370 U.S. 626
    , 634 n. 10 (1962); Taliani v. Chans, 
    189 F.3d 597
    , 597-
    98 (7th Cir. 1999).
      It’s not asking too much of the medical malpractice
    bar to be aware of the existence of federally funded
    health centers that can be sued for malpractice only
    under the Federal Tort Claims Act—there are at least
    three such centers in Chicago besides Erie—and if a
    member of that bar is not aware and misleads a client,
    as lawyer number two did in this case by advising
    the plaintiff that the applicable statute of limitations
    was eight years, the lawyer may be liable for legal mal-
    practice but the government can still invoke the statute
    of limitations.
    No. 12-3189                                               13
      Remarkably, when that lawyer advised the plaintiff
    that the applicable statute of limitations was eight years,
    his law firm—Salvi, Schostok & Pritchard, P.C.—was
    representing another former patient of the Erie Family
    Health Center in a malpractice suit against Erie in the
    same federal district court. That suit, Arroyo v. United
    States, supra, had been filed in 2007, well before the mis-
    taken advice given by the law firm to our plaintiff. Equita-
    ble tolling cannot be premised on the incompetence
    of the plaintiff’s lawyer.
      We are not suggesting that equitable tolling can never
    be used to excuse a plaintiff’s failing to discover the
    federal status of a provider of health services. For
    consider Santos ex rel. Beato v. United States, supra. Within
    months of her child’s injury in that case the mother re-
    tained a lawyer who promptly identified the healthcare
    workers suspected of causing the injury, and performed
    a search of the public records of their employer, York
    Health, but without success. The state court suit in
    that case was filed only five months after the two-
    year federal statute of limitations had expired. The name
    of the provider—York Health Corporation—sounded
    like the name of an enterprise whose employees were
    private rather than government employees, and the
    court stated that there was no “publicly available infor-
    mation” that would have revealed that the employees
    were deemed federal for purposes of malpractice suits,
    id. at 192; there was no reference to a website con-
    taining that information. Had the plaintiff’s lawyers in
    the present case exercised proper diligence yet failed
    to uncover Erie’s federal status, she would have an argu-
    14                                                No. 12-3189
    ment for equitable tolling. See Motley v. United States, 
    295 F.3d 820
    , 824 (8th Cir. 2002); Gonzalez v. United States,
    284 F.3d 281
    , 291-92 (1st Cir.2002); Gould v. U.S. Department
    of Health & Human Services, supra, 905 F.2d at 745-46;
    cf. Valdez ex rel. Doneley v. United States, 
    518 F.3d 173
    , 182-
    85 (2d Cir. 2008). None of them did.
      The judgment for the defendant is
                                                       A FFIRMED.

Document Info

DocketNumber: 12-3189

Filed Date: 4/1/2013

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (32)

Premo v. United States , 599 F.3d 540 ( 2010 )

Link v. Wabash R. Co. , 370 U.S. 626 ( 1962 )

United States v. Kubrick , 444 U.S. 111 ( 1979 )

United States v. Mitchell , 445 U.S. 535 ( 1980 )

John R. Sand & Gravel Co. v. United States , 552 U.S. 130 ( 2008 )

Skwira v. United States , 344 F.3d 64 ( 2003 )

thomas-s-leonhard-individually-and-thomas-s-leonhard-as-natural-parent , 633 F.2d 599 ( 1980 )

Louise Drazan v. United States , 762 F.2d 56 ( 1985 )

ronald-j-nemmers-and-sarah-l-nemmers-parents-and-next-friends-of-eric-p , 795 F.2d 628 ( 1986 )

regis-ann-gould-as-parent-guardian-and-next-of-friend-of-aaron-russell , 905 F.2d 738 ( 1990 )

Arroyo v. United States , 656 F.3d 663 ( 2011 )

Lomando v. United States , 667 F.3d 363 ( 2011 )

Litif v. United States , 670 F.3d 39 ( 2012 )

National Association of Government Employees v. City Public ... , 40 F.3d 698 ( 1994 )

Daniel J. Edwards v. United States Department of Justice , 43 F.3d 312 ( 1994 )

Steven Taliani v. James Chrans, Warden , 189 F.3d 597 ( 1999 )

Norman Shropshear v. Corporation Counsel of the City of ... , 275 F.3d 593 ( 2001 )

catherine-gonzalez-individually-and-as-parent-guardian-and-next-friend-of , 284 F.3d 281 ( 2002 )

ruben-garza-as-personal-representative-of-estate-of-gloria-garza-regalado , 284 F.3d 930 ( 2002 )

Rosalyn Motley v. United States , 295 F.3d 820 ( 2002 )

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