P.W., a minor, by DOMINQUE WOODSON, his mother and guardian, et al., Plaintiffs-Appellants, υ. UNITED STATES OF AMERICA, Defendant-Appellee.
No. 20-1142
United States Court of Appeals For the Seventh Circuit
March 5, 2021
Before SYKES, Chief Judge, and HAMILTON and ST. EVE, Circuit Judges.
ARGUED SEPTEMBER 18, 2020 – DECIDED MARCH 5, 2021
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
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. Ramsey informed Ms. Woodson that she would likely need to deliver 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 instead 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 concerns 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
NorthShore is a Federally-qualified health center (“FQHC“) that receives federal funding and grant money from the United States Public Health Service under
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 federal 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
Sandoval also reviewed the Indiana Department of Insurance (“IDOI“) and Indiana Patient‘s Compensation Fund online databases and learned that Dr. Ramsey and Anonymous Hospital were “qualified” providers under the Indiana Medical Malpractice Act. Sandoval apparently misunderstood this “qualified” status under Indiana law as precluding any potential federal status.
B. Procedural Background
On December 18, 2014, Plaintiffs filed a proposed complaint 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” providers 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 pending and no person or entity has appeared on Dr. Ramsey‘s behalf.
On December 16, 2015, counsel for NorthShore informed Sandoval that NorthShore was a federally funded health center, and that Dr. Ramsey was a federal employee. Plaintiffs
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 judgment. 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. Plaintiffs’ 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 applies 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.”
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
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, Plaintiffs’ claims are therefore untimely if they accrued before February 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.” 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
As we explained in Blanche v. United States, 811 F.3d 953 (7th Cir. 2016), “[i]nstead of mechanically setting the date of
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
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 information 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
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 limitations 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 reasonably diligent person that the complications at birth were a potential cause of the cerebral palsy and mental disabilities. Instead, the statute of limitations started running several years later, when either another doctor informed her of the possibility 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 during delivery. We remanded the case to the district court to decide which of those two events triggered the statute of limitations.
We emphasize again here that a traumatic birth does not automatically trigger the statute of limitations. An unfortunate outcome of a medical procedure is not alone a triggering
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
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] injury.” 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 government 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
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. Plaintiffs’ 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 accrual; 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;
Plaintiffs argue that even if their claims accrued on December 7, 2013, they are nonetheless timely under the savings provision. 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 assert that this action falls within the savings provision. Plaintiffs, however, do not satisfy the second element of the savings provision because the IDOI never dismissed Plaintiffs’ claims, as required under
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 estoppel 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 defendant took improper steps to delay the filing of the suit beyond 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
Plaintiffs’ equitable tolling argument fares no better than their equitable estoppel argument. “Equitable tolling is reserved 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’ prevented 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 appears 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
AFFIRMED.
The general rule is that a tort claim against the federal government 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 information 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 injury, or (2) the individual acquires information that would prompt a reasonable person to inquire further into a potential
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 medical care. And all should recognize that even the best medical care cannot guarantee a good outcome. A negative outcome of medical care is not proof of negligence. Given the complexities of the human body, its injuries and illnesses, and medical treatment, and the special relationship between doctor and patient, the law should not encourage patients to assume their doctors are responsible for negative outcomes, let alone penalize patients 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
The majority strays from these sound precedents. It applies 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 relationship.
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 latest 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
The majority tells us that traumatic birth experiences alone are not enough to trigger the statute of limitations—“Something more is required.” Ante at 9–10. I agree with that general principle. The problem is that the majority does not actually require anything more. In footnote 3, the majority shows what it‘s really doing. It ties the accrual “shortly after the delivery” to Ms. Woodson‘s knowledge that she “knew something was wrong” with her baby‘s arm then. That‘s the negative 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 described the delivery as “traumatic,” and that P.W. was born with a visibly injured, immobile left arm. A moment‘s reflection 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.
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 reasonable 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 parent 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
In prior birth-injury cases where we have found “something more,” there has been much more. Something more than a difficult delivery and an injury. One easy marker of inquiry 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 pertinent 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
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 Indiana 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 review 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
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 insurance 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 Illinois 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 complicate matters more, Dr. Ramsey testified that his insurance coverage 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
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. Ramsey 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 hospital‘s status under the Indiana Department of Insurance process, 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