Adkins v. United States
923 F. Supp. 2d 853
S.D.W. Va2013Background
- Plaintiff Batina Adkins sues as next friend/guardian for infant Draven Robertson alleging Valley Health System/negligence in prenatal care.
- Plaintiff claims antibody testing showed high risk of ABO incompatibility leading to potential injury at birth.
- Draven was born Oct 21, 2008 with injuries including brain damage; discharged Nov 21, 2008.
- Plaintiff claims United States is vicariously liable because Valley Health is federally funded.
- Plaintiff filed administrative FTCA claim Nov 29, 2010; defendant argues accrual before then and timeliness.
- Court addresses accrual under FTCA and potential tolling; ultimately denies motion to dismiss and finds genuine fact issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did plaintiff's FTCA claim accrue? | Plaintiff argues accrual in Jan 2009 when iatrogenic cause known. | Defendant argues accrual by Nov 21, 2008 when injuries and cause known. | Genuine issue of material fact on accrual date; not dismissed. |
| Does continuous treatment toll apply to this FTCA medical malpractice claim? | Plaintiff asserts continuous treatment tolls while under care. | Defendant contends doctrine does not apply because injury arose from failure to diagnose before birth. | Continuous treatment does not apply; but accrual remains unresolved based on evidence. |
| Is defendant entitled to dismissal under Rule 12(b)(1) as a jurisdictional FTCA issue? | (Not explicitly stated as separate argument in summary) | FTCA limitations are jurisdictional; challenge to accrual is jurisdictional. | Court treats as jurisdictional challenge but resolves on merits of accrual and tolling. |
Key Cases Cited
- Miller v. United States, 932 F.2d 301 (4th Cir.1991) (accrual in failure-to-diagnose context focuses on discovery of injury and its iatrogenic cause)
- Arroyo v. United States, 656 F.3d 663 (7th Cir.2011) (FTCA accrual with consideration of iatrogenic harm and discovery timing)
- Drazan v. United States, 762 F.2d 56 (7th Cir.1985) (two-cause knowledge issue; government-related cause requisite for accrual)
- Augustine v. United States, 704 F.2d 1074 (9th Cir.1983) (limits on applying Kubrick/Davis to failure-to-diagnose cases)
- Kubrick v. United States, 444 U.S. 111 (1979) (accrual when injury and its probable cause known)
- Davis v. United States, 642 F.2d 328 (9th Cir.1981) (accrual tied to known injury and likely cause for vaccines/medical acts)
- Kerstetter v. United States, 57 F.3d 362 (4th Cir.1995) (permits accrual determinations when parents learn permanent damage and causation)