Katherine Ingram, on behalf of her minor daughter, T.L., appeals the district court’s 1 grant of summary judgment dismissing her medical malpractice action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (“FTCA”). We affirm.
I.
On December 17, 1997, Katherine Ingram gave birth to a daughter, T.L., who suffered a hypoxic brain injury during delivery, and was later diagnosed with cerebral palsy. Ingram, who was 15 years old at the time, began her pre-natal care at St. Louis Comprehensive Health Center, Inc., a federally-funded medical facility. She was told by her doctor at the health center that when she went into labor, she should go to Deaconess Hospital, a private facility not funded by the federal government. Ingram was admitted to Deaconess on December 16, and Dr. Tony Lam, who was employed by People’s Health Centers, Inc., a federally-funded clinic, delivered T.L. the following evening. After the delivery, T.L. was transferred to Cardinal Glennon Children’s Hospital for specialized care and treatment.
Shortly after T.L.’s birth, an attorney was retained on Ingram’s behalf, and the attorney hired a professional photographer to take pictures of T.L. at the hospital six days after T.L.’s birth. On March 2, 1998, Ingram’s counsel requested medical records from Deaconess regarding T.L.’s delivery. T.L. has since been diagnosed with cerebral palsy, which Ingram alleges was caused by Lam’s negligence during the delivery.
Ingram initially filed suit in the Circuit Court of the City of St. Louis on May 15, 2000, against Lam and another treating doctor, Aaron Pile. The government certified, pursuant to 42 U.S.C. § 233(c), that the doctors were employed at federally *959 supported health centers, id. § 233(g), and were working within the scope of their employment at the time of T.L.’s birth. On that basis, the defendants removed the action to the federal district court on September 12, 2000. The government was granted leave to substitute the United States for the doctors, and the parties stipulated to a dismissal of the action without prejudice. Ingram filed an administrative claim with the Department of Health and Human Services on November 22, 2000. The agency failed to make a final disposition of the claim within six months, and Ingram filed suit under the FTCA, 28 U.S.C. § 2675(a), in the district court on December 19, 2001. Ingram later moved to dismiss her allegations against Pile, and the court granted the motion.
The government then moved to dismiss or, in the alternative, for summary judgment, on the remaining claim, arguing that the complaint was barred by the statute of limitations. The court granted the motion, holding that Ingram’s cause of action accrued when T.L. was transferred to Cardinal Glennon Hospital on December 18, 1997, because Ingram was informed that T.L. had “brain damage.” At that point, the district court concluded, Ingram had a duty to exercise reasonable diligence in determining the cause of the known injury, and because she failed to file an administrative claim under the FTCA within two years after the claim accrued, her action was barred by the statute of limitations.
II.
As a threshold matter, we find it important to consider whether compliance with the FTCA’s statute of limitation is a jurisdictional prerequisite to bringing a suit or an affirmative defense to the action. The district court, noting confusion in our court’s decisions on the issue, assumed the view most favorable to the plaintiff. The court thus characterized the statute of limitations as an affirmative defense, and considered the government’s motion as one for summary judgment.
See Motley v. United States,
Our earliest cases arising under the FTCA treated the statute of limitations as jurisdictional. The federal courts have jurisdiction over claims under the FTCA only to the extent that the United States has waived its sovereign immunity. When the United States consents to be sued, “[t]he terms of its consent to be sued in any court define the court’s jurisdiction to entertain the suit.”
United States v. Sherwood,
In 1991, however, we reversed course in light of the Supreme Court’s decision in
Irwin v. Department of Veterans Affairs,
We reasoned in
Schmidt
that a necessary corollary to the express holding of
Irwin
was “an implied holding” that compliance with the statute of limitations was not a jurisdictional prerequisite to an action against the government, because “[i]f the statute of limitations were jurisdictional, the court would have no power to consider tolling it.”
Schmidt,
Since
Schmidt,
some panels of this court have treated the statute of limitations as an affirmative defense,
Krueger v. Saiki,
We think it is important in this case to resolve whether the statute of limitations is a jurisdictional prerequisite or an affirmative defense. Ingram argues with some force that the district court resolved disputed factual issues in granting the motion for summary judgment, and if the statute of limitations is an affirmative defense, then the resolution of factual disputes would be improper. But if the statute of limitations is jurisdictional, then the district court not only may, but must, resolve factual disputes as necessary to determine its jurisdiction.
Osborn,
When we are confronted with conflicting circuit precedent, the better practice normally is to follow the earliest opinion, as it should have controlled the subsequent panels that created the conflict.
See Kostelec v. State Farm Fire & Cas. Co.,
Having now surveyed the entire landscape, we believe that to the extent the Supreme Court’s decision in Irwin justified a departure from circuit precedent holding that the FTCA statute of limitations is a jurisdictional prerequisite (a proposition we accept based on panel precedent in Schmidt), the Court’s subsequent decision in Brockamp clarifies Irwin and calls for a return to our court’s original view that the statute of limitations defines the court’s jurisdiction. Schmidt was apparently premised on an understanding that Irwin announced an equitable power of the federal courts to toll a statute of limitations in all suits against the government. The existence of such an equitable power, the court thought, was inconsistent with holding that compliance with the statute of limitations in the FTCA is a jurisdictional requirement.
The intervening decision in
Brockamp,
however, demonstrates that the availability of equitable tolling depends on congressional intent, and is not necessarily available as a matter of general equitable power in all actions against the government. As
Brockamp
illuminates, the rule of equitable tolling applies in FTCA cases only because Congress intended it to apply. It is thus one of the “terms” of the government’s consent to be sued,
Sherwood, 312
U.S. at 586,
III.
Because a plaintiffs compliance with the statute of limitations is prerequisite to the district court’s jurisdiction over a suit against the United States under the FTCA, the court must resolve material issues of disputed fact and determine whether the action was timely filed.
Osborn,
Under the FTCA, claims against the United States are barred unless an administrative claim is filed with the appropriate agency within two years after the claim accrues. 28 U.S.C. § 2401(b).
*962
In medical malpractice cases, a claim accrues when the plaintiff “actually knew or in the exercise of reasonable diligence should have known, the cause and existence of his injury.”
Motley,
Ingram argues that her claim accrued, at the earliest, in August 1999, and that because she filed an administrative claim in November 2000, she was within the two-year statute of limitations. She contends that she had no reason to know of her daughter’s cerebral palsy until August 1999, when T.L. was 18 months old, and that no doctor ever told her that Dr. Lam’s alleged negligence during delivery caused T.L.’s cerebral palsy.
Knowing the cause and existence of an injury, however, is not the same as knowing that a legal right has been violated.
Motley,
The district court found that Ingram was aware of the injury to T.L. by December 18, 1997, when T.L. was transferred to Cardinal Glennon Hospital. The court noted that the consent form that Ingram signed to authorize the transfer diagnosed T.L. with “respiratory distress,” indicated that she was “incubated,” and that she demonstrated “lip smacking and twitching.” (J.A. at 64). The court also pointed out that the medical records from Cardinal Glennon Hospital indicate that Ingram and T.L.’s grandparents were informed on December 18 that T.L. had “severe, permanent brain injury and [a] poor prognosis.” 2 (J.A. at 69). Hospital records reflect that a few days later, Ingram informed a doctor at Lutheran Hospital, where Ingram stayed for observation after the delivery at Deaconess, that her baby had “sustained some brain damage.” (Id. at 71.) In light of this evidence, the district court’s determination that Ingram knew of the existence of T.L.’s brain injury on December 18,1997, was not clearly erroneous.
Ingram claims that even if she was informed that T.L. had brain damage, she was unaware that T.L. had cerebral palsy until she began to suspect that something was wrong with her daughter in August 1999. A plaintiff has a duty, however, “to seek advice regarding the possibility of legal action” once she is “armed with the facts about the harm done to [her].”
Osborn,
Ingram also argues that the claim did not accrue until she was aware of the cause of her daughter’s cerebral palsy. She points to the fact that a treating physician who examined T.L. when she was six months old noted that T.L. was “developmentally [within normal limits] thus far.” Ingram contends that this opinion is evidence that her claim did not accrue earlier, because she was not yet aware of the specific diagnosis and cause of the cerebral palsy. The medical record in question, however, also stated that T.L. was afflicted with “hypoxic-ischemic encephalopathy,” a term for irreversible brain damage caused by a lack of oxygen and blood flow to the brain, often occurring during birth.
Stedmcm’s Medical Dictionary
588 (27th ed.2000); Debbie Mcpartland,
Introduction to Hypoxic Ischemic Encephalopathy
(Nov. 16, 2000),
available at
http:// www.suitel01.com /article.cfm/hypoxic_ischemic_encephalopathy/36008. The medical record thus provided continuing notice both of the injury and even the probable cause of the injury. And even examining in isolation the statement that T.L. was “developmentally within normal limits,” we cannot agree that conflicting or inaccurate diagnoses are sufficient to toll the statute of limitations, for it would be impractical to conclude that the limitations period stops and starts depending on the diagnosis of each doctor who examines a patient after the occurrence of an injury. Once a plaintiff is aware of the facts of the harm done to her, she has a duty to exercise due diligence in investigating its cause, and “[w]hether the advice received is competent or incompetent makes no difference to the accrual of [her] claim.”
Osborn,
As the district court noted, moreover, there is evidence that Ingram began to contemplate possible legal action while still at the hospital after T.L.’s birth. An attorney was retained shortly after the birth, and while he was originally hired to investigate a fall taken by Ingram at the hospital, he was informed that T.L. was born with cuts and bruises on her head, face, and neck. A employee from the attorney’s office sent a professional legal photographer to photograph T.L. six days after she was born, and the attorney requested medical records from Deaconess within three months. This evidence indicates that Ingram knew of and was investigating the cause and existence of T.L.’s injury shortly after T.L.’s birth. The district court thus did not clearly err in determining that T.L.’s brain damage was the injury, that the cerebral palsy was the degree of this injury, and that a claim accrued as of December 18, 1997, when Ingram knew of the cause and existence of T.L.’s brain injury.
IV.
Ingram next argues that even if the claim accrued on December 18, 1997, the statute of limitations was tolled for three separate reasons: (1) she did not know and could not reasonably have known that Dr. Lam was employed by a federally-funded clinic, (2) she requested but did not receive complete medical records from the hospital, and (3) she was a minor when T.L. was born. The doctrine of equitable tolling applies to FTCA claims against the government, but does not apply to “garden variety” claims of excusable neglect,
Irwin,
*964 On the first point, Ingram contends that she delivered T.L. at Deaconess, a private hospital, and had no reason to suspect that her baby was delivered by an employee of People’s Health Centers, Inc., a federally-funded clinic at which she was never a patient. Ingram also points out that there is no indication in her medical records that Dr. Lam was employed by a federally-funded clinic, and argues that one record even implies that he was a “house” physician, ie., an employee of Deaconess. A newborn nursery register for December 17, 1997, includes a notation indicating that T.L.’s delivery was an “HC” (ie., house case) at Deaconess.
The statute of limitations is not tolled, however, simply because a plaintiff is unaware that an alleged tortfeasor is a federal employee.
Motley,
‘Where the government or its agents have not misled or deceived a plaintiff, or otherwise hidden the legal identity of alleged tortfeasors as federal employees, the cause of action still accrues when the existence of an injury and its cause are known.”
Garza v. United States Bureau of Prisons,
Ingram also contends that the limitations period should be equitably tolled because she timely requested medical records from Deaconess, but did not receive a full and complete copy of the records. She argues that a complete copy of the “fetal heart monitoring strips” used during the care of T.L. is essential to determining the existence and cause of T.L.’s cerebral palsy, and that the hospital’s failure to provide these records entitles her to equitable tolling. According to the affidavit of Ingram’s attorney, he began requesting the strips on December 23, 1997, but was provided with only a partial and partly illegible copy. Deaconess later reported that all of the original strips are missing. The district court nonetheless refused to toll the limitations period on this basis, explaining that the loss or destruction of some fetal monitoring strips did not overcome the plaintiffs duty to exercise diligence in filing her claim. The court observed that the loss of these records is a fact that would continue to exist throughout the litigation, whether or not the plaintiff had timely filed her claim. We agree with the district court.
“[W]here a plaintiff has timely requested records that contain the specific facts of negligence that caused his injury, and those facts are not otherwise knowable, the cause of action does not accrue until he receives the records.”
Garza,
Ingram argues finally that the statute of limitations should be equitably tolled because she was 15 years old when T.L. was born. Ingram notes that she had no legal guardian at the time, although her grandmother had cared for her since she was six years old. In
Wilson ex rel. Wilson v. Gunn,
Ingram is T.L.’s mother and has been responsible for her care since T.L.’s birth, as evidenced by her signature on the form consenting to transfer T.L.’s care from Deaconess to Cardinal Glennon Children’s Hospital. The district court found that Ingram was aware of T.L.’s brain damage shortly after her birth. Although Ingram herself did not have an appointed guardian, her grandmother was actively involved in her care, was informed of T.L.’s brain damage and poor prognosis, and eventually became Ingram’s guardian for the purpose of filing the civil suit against the doctors in state court. Ingram’s family even retained an attorney for her six days after T.L.’s birth. Although a minor, Ingram could have filed an administrative claim.
Wilson,
* * * * ❖
For the foregoing reasons, we affirm the judgment of the district court.
Notes
. The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri.
. Ingram argues that the medical records introduced by the government in support of its motion were unauthenticated and thus improperly considered by the district court. But Ingram did not raise any challenge to the medical record evidence in the district court, so any objection to the district court's consideration of the materials was forfeited, and we review the record only for plain error.
See Diesel Machinery, Inc. v. B.R. Lee Industries,