P.W. v. United States ( 2021 )

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.