This suit undеr the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., was dismissed as barred by the Act’s two-year statute of limitations for filing (as a prerequisite to suit) an administrative claim, 28 U.S.C. § 2401(b). The plaintiff has appealed, raising an interesting question about when a causе of action for failure to discover and treat an illness arises and sets the statute of limitations running.
The plaintiff’s husband, Bozo Drazan, had for many years received treatment at a Veterans Administration hospital in Chicago for tuberculosis. His disease was in remission but he got annual check-ups and chest x-rays at the hospital. The x-ray that the hospital took in November 1979 revealed the possibility of a small tumor in one of his lungs, and the radiology report suggested that Drazan be given a follow-up examination in a few weeks. No such examination was conducted; and given the posture of the case before us, we must assume (of course without deciding) that the omission was due to the hospital’s negligence, as in
Raddatz v. United States,
The district court held that the plaintiff’s cause of action accrued in February 1981, when she learned that her husband had (a few days earlier) died Of lung cancer. If this is right, she had till February 1983 to file her administrative claim. She tried to file such a claim in June 1982, which would have been in plenty of time even under the district court’s view of when her cause of action arose. But the district court was quite right to hold that mailing is not presenting; there must be receipt. See 28 C.F.R. § 14.2(a); 38 C.F.R. § 14.604(b);
Best Bearings Co. v. United States,
But if she is right that her cause of action did not arise till December 1981, when she received her husband’s medical reports and discovered the results of the x-ray tаken in November 1979, then her September 1983 refiling was in time, and the only problem would be that her suit (filed in February 1983) was filed prematurely, because you cannot sue before presenting your administrative claim (you don’t have to wait, though, beyond six months, for it to be acted on). 28 U.S.C. § 2675(a). But this problem can easily be solved by allowing her to amend her complaint to change the date to six months after the refiling of the administrative claim.
Thus the critical questiоn is when her cause of action arose. The district court, in holding that it arose in February 1981, relied on
United States v. Kubrick,
But this is a misinterpretation of Kubrick. Kubrick was given a drug in a Veterans Administration hospital and afterward had ear problems which he was told might be due to the drug. So he knew he was injured and knew (though not with certainty) that the drug — a drug аdministered by the government hospital — was the cause of the injury. He thus knew the government had hurt him, though not necessarily through negligence, just as you would know the government had hurt you if you watched a postal van run over your foot. Thеre is nothing like that in this case. When Mr. Drazan died in February 1981, his wife had (at least so far as the present record shows — an important qualification, to which we shall return) no reason to think that the government had killed him by neglecting to follow up the x-ray examination of 16 months earlier (may have killed him, for of course he might, have died anyway even if the cancer had been detected much earlier — lung cancer does not have a high survival ratе even when discovered very early). She thought lung cancer had killed him. But it is not an either-or proposition. Lung cancer did kill *59 him, but maybe only because the government had failed to follow up on the results of an x-ray examinаtion. When there are two causes of an injury, and only one is the government, the knowledge that is required to set the statute of limitations running is knowledge of the government cause, not just of the other cause.
This is trivially obvious in some cases. A postal van knocks a man down, and he strikes his head against the pavement and is killed. No one sees the accident, and the hospital to which the body is taken gives out the cause of death as a frаctured skull. That is one cause but the postal service is another; and unless the decedent’s survivors know or should know that the postal service caused the decedent’s head to hit the pavement, just knowing that he died frоm a fractured skull does not start the statute of limitations running. Our decision in
Stoleson v. United States,
The district court’s approach, if widely adopted, would have the following rather ghoulish consequence: any time someone suffered pain or illness or death in a Vеterans Administration hospital, he (or in the case of death his survivors) would request his hospital records to see whether diagnosis or treatment might have played a role in his distress — whether, that is, the harm might have been “iatrogenic” (doctor-caused). He could not wait till he had reason to think he had suffered any iatrogenic harm; the two years might have run. We do not think such behavior should be encouraged, or that anything in Kubrick requires us to encourage it. The cause of which a federal tort claimant must have notice for the statute of limitations to begin to run is the cause that is in the government’s control, not a concurrent but independent cause that would not lead аnyone to suspect that the government had been responsible for the injury. The notice must be not of harm but of iatrogenic harm, though, as Kubrick holds, not necessarily of negligent iatrogenic harm.
We have not said, however, that the statute of limitations begins to run when the government сause is known; that would be inaccurate. It begins to run either when the government cause is known or 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 — whichever comes first. See, e.g.,
Stoleson v. United States, supra,
The record is silent on the circumstances surrounding her request in November 1981 for her husband’s medical records. This is not surprising since the complaint was dismissed on the government’s motion to dismiss, before there was any discovery. The case must be returned to the district court to determine when Mrs. Drazan should have suspected government causality in the deаth of her husband, and for such further proceedings as may be consistent with that court’s determination.
For the guidance of the district court on remand we add two points. First, should the court find that Mrs. Drazan discovered or should have discovered the possibility of iatrogenic harm to her husband sometime between February and December 1981, it may become necessary for the district court to determine whether she actually filed her administrative claim earlier than September 1983. In July, after the suit was brought, the plaintiff furnished the United States Attorney defending the suit with a copy of the required administrative claim. The regulations under the Tort Claims Act provide that if a claim is presented to the wrong federal agency, “that agency shall transfer it forthwith to the appropriate agency,” and a “claim shall be presented as required by 28 U.S.C. 2401(b) [the two-year deadline for the administrative claim] as of thе date it is received by the appropriate agency.” 28 C.F.R. § 14.2(b)(1). Whether or when the U.S. Attorney transferred the administrative claim he received in July 1983 to the Veterans Administration is an issue the district court will have to resolve should it become material.
Second, although the statute of limitations is of course an affirmative defense, the burden of establishing an exception to the statute of limitations is on the plaintiff.
DeWitt v. United States,
Reversed and Remanded.