finding the FTCA limitations provision non-jurisdictional and subject to tolling, and noting “[t]he 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”
How later courts described this case
- finding the FTCA limitations provision non-jurisdictional and subject to tolling, and noting “[t]he 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”
- considering whether to equitably toll the statute of lim‐ itations when the plaintiff’s lawyer failed to discover that the defendant health center was “deemed federal”
- stating that fraudulent concealment is “often used a synonym for conduct giving rise to [equitable] estoppel.”
- ‘With regard to the Federal Tort Claims Act, the presumption that the deadline for exhausting remedies is not jurisdictional, far from being rebutted by clear statutory language, is confirmed by such language.... [W]e think the answer is that [the FTCA statute of limitations] can be tolled — and we doubt that the contrary approach has survived the Supreme Court’s decision in the Auburn Regional Medical Center case.” (citations omitted)
Written by the judges who cited it.
The opinion
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,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellee.
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.
§2401(b).
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,” http://bphc.hrsa.gov/ftca/
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
Services, 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), http://web.archive.org/web/
20050306234109/http://www.eriefamilyhealth.org/history.
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,” http://bphc.hrsa.gov/ftca/healthcenters/
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.
4-1-13