Morales-Melecio v. United States ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2064
LUZ Z. MORALES-MELECIO; MARÍA I. MARTÍNEZ-ORTIZ;
EMILIO MATOS-PÉREZ; MARIELA MATOS-MARTÍNEZ,
Plaintiffs, Appellants,
v.
UNITED STATES (Department of Health and Human Services),
Defendant/Third-Party Plaintiff, Appellee,
v.
EMERGENCY PRACTICE MANAGEMENT, P.S.C.; HOSPITAL
UNIVERSITARIO DR. RAMÓN RUIZ ARNAU; DR. LUIS E. MEJÍAS-
BETANCOURT; DR. RICARDO ROSARIO-MENDOZA; DR. MINELY
MARTÍNEZ-VELÁSQUEZ; DR. LUIS RODRÍGUEZ-ROSELLÓ,
Third-Party Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. Senior District Judge]
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
José F. Velázquez-Ortiz and Velázquez Law Offices, PSC on
brief for appellants.
John A. Mathews II, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.
May 21, 2018
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TORRUELLA, Circuit Judge. This case once again calls
for this Court to determine the accrual date of a claim arising
under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),
2671-2680, and the potential application of the so-called
"discovery rule."
I.
On March 1, 2010, Emilio Matos-Martínez ("Matos") died
at the Puerto Rico Medical Center ("PRMC") after having been
diagnosed with septic shock and multiple organ failure, and
suffering two cardiorespiratory attacks. Prior to his death at
PRMC, Matos was treated at two other medical facilities on
February 27 and February 28, 2010. At some point after Matos's
death, Matos's parents, sister, and daughter (collectively,
"Appellants") became aware that the first medical facility at which
Matos was treated was a federally supported entity. Appellants
filed an administrative claim with the United States Department of
Health and Human Services ("USDHHS" or the "government") on April
16, 2012, followed by a medical malpractice complaint pursuant to
the FTCA against USDHHS in the district court on April 22, 2013.
The district court granted summary judgment in favor of the
government, holding that Appellants' claims were time-barred for
failing to file compulsory administrative claims within the FTCA's
two-year statute of limitations. See 28 U.S.C. § 2401(b).
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Appellants now appeal the dismissal of their complaint,
arguing that their FTCA claims did not begin to accrue until they
received Matos's autopsy report on July 28, 2010. After careful
review of the record, we agree with the district court that
Appellants' claims are time-barred. We therefore affirm.
II.
The facts are largely undisputed.1 On February 27, 2010,
at 4:55 p.m., Matos, a thirty-six year old man weighing 370 pounds2
with a history of hypertension, arrived at Salud Integral en la
Montaña, Inc. ("SIM"), a health center located in Naranjito, Puerto
Rico, complaining of abdominal pain that had persisted for five
days, constipation, and fever. SIM is a covered entity under the
Federally Supported Health Centers Assistance Act of 1995, Pub. L.
104-73, 109 Stat. 777 (codified at 42 U.S.C. § 233). After
triaging Matos, a resident nurse at SIM determined that his
condition was such that he needed to be promptly evaluated by a
1 Appellants state that the district court "made a partial, however
good synthesis of some of the undisputed material facts in this
case," and point to several facts not contained within the district
court's analysis. None of these purportedly omitted facts are
material to our determination of the accrual date of Appellants'
action.
2 Appellants and the government both assert that Matos weighed
330 pounds, a fact that the district court seems to have adopted.
However, an autopsy report shows that Matos weighed 370 pounds
when he died. This distinction, too, has no effect on this Court's
analysis.
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doctor. After the duty physician, Dr. María Román-Bruno
("Dr. Román"), conducted a cursory examination of Matos that did
not involve x-rays, laboratory tests, or other imaging, she
diagnosed Matos with "abdominal pain" and prescribed him Maalox
and Enulose for his constipation,3 and Bentyl for his abdominal
pain.4 Dr. Román then discharged Matos and instructed him to see
his primary doctor in two days.
The next day, Matos's sister, Mariela Matos, took Matos
to the Hospital Universitario Ramón Ruiz-Arnau ("HURRA"), a
regional hospital in Bayamón, because his symptoms had worsened
overnight. Upon arrival, Matos was diagnosed with abdominal pain,
dehydration, and hematuria.5 Medical tests revealed that Matos
had a bowel obstruction, which prompted the emergency room
physician to request a surgical evaluation. However, the head of
HURRA's surgery department, Dr. Ricardo Rosario ("Dr. Rosario"),
refused to evaluate Matos because he believed that the surgical
tables at the hospital would not support Matos's weight.6 Due to
3 Maalox is an antacid. Enulose is a laxative.
4 According to Dr. Román's testimony, Bentyl is used in small
amounts to "alleviate abdominal pain."
5 Hematuria is the medical term for blood in the urine.
6 In his deposition, Dr. Rosario denied that he had ever refused
to partake in a consultation because of a patient's weight.
Matos's medical progress note, however, indicates otherwise.
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HURRA's inability to properly evaluate Matos, the staff at HURRA
attempted to transfer Matos to another medical facility but was
unable to do so until the next day.
On March 1, 2010, Matos was transferred to the PRMC where
he was diagnosed with septic shock and multiple organ failure.
Shortly thereafter, Matos suffered two consecutive cardiac arrests
and, at 4:15 p.m., was declared dead. Immediately after Matos's
death, a PRMC physician appears to have informed his father, Emilio
Matos-Pérez, that Matos died of a heart attack. That same day,
Matos's mother, María Martínez-Ortiz ("Martínez"), authorized PRMC
to perform an autopsy of Matos's body. The autopsy was performed
on March 2, 2010.
On March 6, 2010, Matos's body was cremated. Two days
later, Martínez was given Matos's ashes along with a copy of his
death certificate. The death certificate listed Matos's immediate
cause of death as "septic shock, secondary to peritonitis,
secondary to intestinal perforation." On May 26, 2010, Martínez
requested a certified copy of Matos's complete PRMC medical file.
She received the file, along with the final autopsy report, on
July 28, 2010. The autopsy report matched the death certificate
findings as to the septic shock and the peritonitis.7 However,
7 Specifically, the final autopsy report listed the following
under its final pathologic diagnosis: (1) Septic Shock; (2) Morbid
obesity; (3) Congestive Heart Failure; and, (4) Renal Failure.
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rather than listing "intestinal perforation," the autopsy report
went into further detail about Matos's torn intestine, listing
"diverticulitis, perforated with peritonitis with abscess
formation." The narrative section of the autopsy report labeled
"Laboratory Findings" reads that "[a]n intestinal perforation in
the Colon at 192 cm from the ileo-cecal valve (distal portion)
measuring 0.5 cm corresponded to a diverticuli (Sigmoid Colon)."
At an unidentified time after obtaining possession of the medical
file, Appellants hired an attorney to explore their legal options.
On March 16, 2011, Appellants filed a medical
malpractice suit in the Puerto Rico Court of First Instance against
SIM, HURRA, and several physicians, alleging the wrongful death of
Matos. On June 30, 2011, Appellants voluntarily dismissed their
state court lawsuit. At some point thereafter, Appellants became
aware that SIM was a federally covered entity and, on April 16,
2012, they filed an administrative claim with the USDHHS.8 While
that administrative claim was still pending, on April 22, 2013,
Appellants filed this FTCA medical malpractice claim against the
USDHHS, as the representative of SIM and Dr. Román (as SIM's
Each diagnosis is further detailed in the autopsy report.
8 In their complaint, Appellants asserted that they filed their
administrative claim on April 9, 2012. Both parties on appeal
acknowledge that the administrative claim was filed on April 16,
2012.
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agent), seeking compensatory damages for their own suffering as a
result of Matos's death. In the same complaint, Matos's minor
daughter, Z.M.M., as heir of her deceased father, also asserted an
inherited action for Matos's pain and suffering before his death
as a result of the alleged medical malpractice.9 The government
brought a third-party complaint against HURRA and several
physicians that cared for or evaluated Matos in the events leading
up to his death, seeking to add them as additional parties to the
lawsuit. On May 3, 2013, the USDHHS denied the administrative
claims against SIM.
After discovery was complete in the district court,
Appellants filed a motion for partial summary judgment on
November 27, 2015, claiming there was no factual dispute as to the
negligence of the government's agent. On November 30, 2015, the
government filed its own motion for summary judgment, positing
9 While a tort claim under the FTCA substantively follows state
law liability, its statute of limitations provisions are governed
by federal law, not state law. Domínguez v. United States, 799
F.3d 151, 154 (1st Cir. 2015). Therefore, state law tolling
statutes do not apply to the FTCA statute of limitations. See,
e.g., Santos ex. rel. Beato v. United States, 559 F.3d 189, 193
(3d Cir. 2009); Arteaga v. United States, 711 F.3d 828, 830 (7th
Cir. 2013). Unlike Puerto Rico tort claims, for which the statute
of limitations governing both personal and inherited tort actions
by minors are suspended until the minor becomes of legal age, De
Jesús v. Chardón, 16 P.R. Offic. Trans. 290, 308-09 (1985), the
FTCA includes no such tolling provision, see 28 U.S.C. §§ 2401(b),
2671-2680. Thus, we treat Z.M.M.'s claims in the same manner as
those of the remaining Appellants.
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that the Appellants' claims were barred by their failure to file
an administrative claim within two years after their causes of
action accrued, as mandated by 28 U.S.C. § 2401(b). Appellants
countered that there was undisputed evidence that Matos's
diverticulitis triggered his death, and that they could not have
known of that evidence and possibly connected Matos's death to any
governmental malfeasance until they received the autopsy report on
July 28, 2010. Therefore, Appellants asserted, under the
"discovery rule," they had until July 28, 2012, to file their
federal claim, and, because their administrative claim was filed
before that, their claim was timely.
The district court agreed with the government, holding
that by March 1, 2010, Appellants had sufficient knowledge as to
the probable cause of Matos's death such that the statute of
limitations began to run that same day. As Appellants had not
filed their administrative claims until April 16, 2012,10 the
district court dismissed Appellants' claims with prejudice on
June 6, 2016. Appellants filed a motion to reconsider on June 10,
10 In its opinion and order, the district court used April 15,
2012, as the date on which Appellants filed their administrative
motion. As previously noted, both parties agree on appeal that
the administrative claim was filed on April 16, 2012. See supra
note 8.
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2016, which the district court denied on August 3, 2016.
Appellants timely appealed.
III.
It is axiomatic that, absent an explicit waiver, the
United States is safeguarded from suit in any court in accordance
with its sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475
(1994). The FTCA constitutes a limited waiver of that sovereign
immunity, allowing, in relevant part, for damages claims to be
brought against the United States for any "injury or loss of
property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment." 28 U.S.C.
§ 1346(b)(1). One limitation of this waiver, however, requires
that "[a] tort claim against the United States . . . is presented
in writing to the appropriate Federal agency within two years after
such claim accrues," otherwise that claim is "forever barred."
Id. § 2401(b).11 "[I]n construing the statute of limitations . . .
11 Congress passed the Westfall Act of 1988, Pub. L. No. 100-694,
102 Stat. 4563, which amended the FTCA to require that "any civil
action or proceeding commenced upon such claim in a State court
shall be removed . . . to the district court of the United
States . . . . Such action or proceeding shall be deemed to be an
action or proceeding brought against the United States . . . and
the United States shall be substituted as the party defendant."
28 U.S.C. § 2679(d)(2). Further,
Whenever an action or proceeding in which the United
States is substituted as the party defendant under
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we should not take it upon ourselves to extend the waiver beyond
that which Congress intended," United States v. Kubrick, 444 U.S.
111, 117-18 (1979), nor "should we assume the authority to narrow
the waiver," id. (citing Indian Towing Co. v. United States, 350
U.S. 61, 68-69 (1955)).
This Court had long interpreted the timely filing of an
administrative claim pursuant to § 2401(b) as a jurisdictional
prerequisite to vesting the district court with subject matter
jurisdiction over an FTCA suit against the United States. See
Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003); González
this subsection is dismissed for failure first to
present a claim pursuant to section 2675(a) of this
title [requiring that an administrative claim be first
filed], such a claim shall be deemed to be timely
presented under section 2401(b) of this title if --
(A) the claim would have been timely had it been filed
on the date the underlying civil action was commenced,
and
(B) the claim is presented to the Federal agency
within 60 days after the dismissal of the civil
action.
Id. § 2679(d)(5). Here, Appellants filed a medical malpractice
suit against SIM and others in Puerto Rico court on March 16, 2011,
which they voluntarily dismissed on June 30, 2011. Appellants
neither state that their local claims were brought pursuant to the
FTCA nor that the United States was substituted as the party
defendant. Further, Appellants acknowledge that they did not file
a claim with the USDHHS within sixty days of their voluntarily
dismissal of that local suit. Accordingly, § 2679(d)(5) provides
no protection to Appellants' claims, and they make no argument
otherwise.
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v. United States, 284 F.3d 281, 288 (1st Cir. 2002); Attallah v.
United States, 955 F.2d 776, 779 (1st Cir. 1992); González-Bernal
v. United States, 907 F.2d 246, 248 (1st Cir. 1990). However, in
2015, the Supreme Court clarified that the FTCA's statute of
limitations is nonjurisdictional. United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1638 (2015). Given the nonjurisdictional nature
of § 2401(b), we must now view the FTCA's statute of limitations
as an affirmative defense to be asserted by the defendant. See
Skwira, 344 F.3d at 71 n.8 (citing Hughes v. United States, 263
F.3d 272, 278 (3d Cir. 2001), for the proposition that other
pre-Kwai-Fun Wong cases considered the FTCA's statute of
limitations to be a nonjurisdictional affirmative defense asserted
by the defendant); see also Trinity Marine Prod., Inc. v. United
States, 812 F.3d 481, 486 (5th Cir. 2016); Fed. R. Civ. P. 8(c)(1);
cf. Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1417-18
(2017) (stating that, in ordinary civil cases the statute of
limitations is an affirmative defense); Weil v. Elliot, 859 F.3d
812, 815 (9th Cir. 2017) (finding in the bankruptcy context that
"[a] non-jurisdictional time bar is an affirmative defense that
may be forfeited if not timely raised"). Here, the government
repeatedly raised the statute of limitations in its motion to
dismiss filed on August 1, 2013, in the "Affirmative Defenses"
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section of its answer to Appellants' complaint filed on February 3,
2014, and again in its motion for summary judgment.
Ultimately, the district court resolved the dispute on
summary judgment. We take this opportunity to note that, post-
Kwai Fun Wong, motions to dismiss based on the FTCA's statute of
limitations should now be brought under Federal Rule of Civil
Procedure 12(b)(6) (failure to state a claim upon which relief can
be granted), or considered pursuant to Rule 56 (summary judgment).
See Trinity Marine Prod., Inc., 812 F.3d at 486 ("[T]he district
court should have considered the Government's motion to dismiss
under Rule 12(b)(6) rather than 12(b)(1)."); see also Holloway v.
United States, 845 F.3d 487, 489 (1st Cir. 2017) (acknowledging
post-Kwai Fun Wong that the magistrate judge treated the
Government's 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction as one for summary judgment); Torres v. United States,
612 F. App'x 37, 39 (2d Cir. 2015) (unpublished) (affirming the
district court's dismissal under Rule 12(b)(1) but noting that
"the district court's order is technically incorrect, insofar as
the dismissal should be for failure to state a claim, not for lack
of jurisdiction").
As the district court properly analyzed this claim
utilizing the appropriate summary judgment test, "[w]e review the
district court's decision to grant defendant's motion for summary
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judgment on statute of limitations grounds de novo, construing the
record in the light most favorable to the non-moving party."
Rodríguez v. Suzuki Motor Corp., 570 F.3d 402, 405-6 (1st Cir.
2009) (citation omitted). The district court's decision will be
affirmed if, "based on our independent review of the evidentiary
record, there is no genuine issue of material fact and the
undisputed facts indicate that the moving party is entitled to
judgment as a matter of law." Id. at 406. However, summary
judgment is improper when the "record is sufficiently open-ended
to permit a rational factfinder to resolve a material factual
dispute in favor of either side." Pierce v. Cotuit Fire Dist.,
741 F.3d 295, 301 (1st Cir. 2014).
IV.
In general, a tort claim under the FTCA accrues when a
plaintiff is injured. Ramírez-Carlo v. United States, 496 F.3d
41, 46 (1st Cir. 2007). Both parties agree that the date of injury
in question, Matos's death, was March 1, 2010. But, under the
Supreme Court's "discovery rule" exception for FTCA claims, the
statute of limitations clock does not begin to run until the
putative plaintiff knows of the factual basis of both his injury
and its cause. Kubrick, 444 U.S. at 119-22; see also Nicolazzo v.
United States, 786 F.2d 454, 455 (1st Cir. 1986). The Court
explained that two major concerns necessitated this rule:
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One is the fact that . . . since many of the
consequences of medical malpractice often do not
become apparent for a period longer than that of the
statute [of limitations], the injured plaintiff is
left without a remedy. The second reason is that the
nature of the tort itself and the character of the
injury will frequently prevent knowledge of what is
wrong, so that the plaintiff is forced to rely upon
what he is told by the physician or surgeon.
Kubrick, 444 U.S. at 120 n.7 (quoting Restatement (Second) of Torts
§ 899 cmt. e (1979)). Once aware of the probable cause and
existence of the injury, that putative medical malpractice
plaintiff bears the burden of seeking further advice from the
medical and legal communities to decide whether he has a viable
cause of action. See Ramírez-Carlo, 496 F.3d at 47 (citing
Callahan v. United States, 426 F.3d 444, 451 (1st Cir. 2005)); see
also Sánchez v. United States, 740 F.3d 47, 52 (1st Cir. 2014);
Skwira, 344 F.3d at 76. "Knowing the cause and existence of an
injury is not the same as knowing that a legal right has been
violated." Motley v. United States, 295 F.3d 820, 822 (8th Cir.
2002).
V.
Appellants contend that their claims did not accrue
until July 28, 2010, the date that they received the autopsy
report. Unlike the death certificate, they assert that the autopsy
report revealed that the "most significant" cause of Matos's death
was diverticulitis, which a reasonable person could not have known
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on the day that he died. Therefore, Appellants allege that they
"became aware that the patient's death was possibly caused by
mistreatment of his condition . . . only after the issuance on
July 28, 2010[,] of the PRMC medical records with the autopsy
report that revealed [Matos's] diverticulitis disease." Thus, the
clock to file their FTCA claims should not have expired until
July 28, 2012, rendering timely their administrative claims filed
on April 16, 2012. Further, Appellants assert that PRMC's "extreme
delay" in providing the autopsy report precluded them from learning
the factual basis to assert their causes of action any earlier,
and that, prior to receiving it, no one could have anticipated any
litigation resulting from Matos's death. We disagree.
The court employs an objective standard to determine
whether a plaintiff knew of sufficient facts for his action to
accrue, contemplating "whether a reasonable person similarly
situated to the plaintiff would have known the necessary facts,"
or reasonably could have obtained sufficient facts through the
exercise of reasonable diligence. Cascone v. United States, 370
F.3d 95, 104 (1st Cir. 2004) (emphasis omitted) (citing McIntyre
v. United States, 367 F.3d 38, 60 (1st Cir. 2004)); see also
Skwira, 344 F.3d at 81-82. This Court has clarified that a
plaintiff need not know the "full extent of the injury," González,
284 F.3d at 289 (citing Marrapese v. Rhode Island, 749 F.2d 934,
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940 n.10 (1st Cir. 1984)), "or that it was negligently inflicted,"
id. (citing Kubrick, 444 U.S. at 124), in order for the statute of
limitations to begin to run. Further, "definitive knowledge of
the cause of injury is not required to trigger the accrual of a
medical malpractice claim." Skwira, 344 F.3d at 78 (citing
Kubrick, 444 U.S. at 118); see also Callahan, 426 F.3d at 451. A
plaintiff need only be aware of his injury and the facts
establishing the probable cause of the injury for the claim to
accrue. See Kubrick, 444 U.S. at 118; see also González, 284 F.3d
at 289. While knowing the factual basis of the cause of action
includes knowing "the identity of the part[y] that caused the
injury," McIntyre, 367 F.3d at 52, "knowledge of the legal status
of the physician as a federal employee is not required for claim
accrual," Skwira, 344 F.3d at 76.
Applying these principles, we find that, at least by
March 8, 2010, when Appellants received Matos's death certificate,
they knew of sufficient facts to raise an alarm in a reasonable
person that the probable cause of Matos's death was connected to
the defendants' treatment (or failure to provide treatment) of
Matos's medical condition. Upon receipt of Matos's death
certificate, Appellants were aware that Matos had experienced five
days of abdominal pain, constipation, and fever by the time that
he arrived at SIM on February 27, 2010; that a nurse at SIM deemed
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his condition to be "urgent"; and that Dr. Román simply diagnosed
him with "abdominal pain" and prescribed him a laxative, an
antacid, and a pain reliever without ordering any laboratory tests
or x-rays. Appellants were also aware that after Dr. Román
discharged Matos, his condition worsened overnight, prompting his
family to take him to HURRA, where medical tests revealed a bowel
obstruction that required a surgical evaluation. Additionally,
Appellants knew that after HURRA transferred Matos to PRMC on
March 1, 2010, less than two days after SIM discharged him, Matos
was diagnosed with septic shock, multiple organ failure, and
suffered two consecutive cardiac arrests ultimately resulting in
his death. Finally, upon receiving the death certificate on March
8, 2010, Appellants were aware of Matos's direct, medical cause of
death: septic shock, caused by peritonitis, which itself was caused
by a perforated intestine. The knowledge of these vital facts was
more than sufficient to trigger Appellants' burden to inquire
amongst the relevant medical and legal communities as to whether
there was a causal connection between SIM's lack of treatment and
Matos's death, and whether Appellants had a viable cause of action.
See Kubrick, 444 U.S. at 124; González, 284 F.3d at 290.
The essence of Appellants' argument is that they could
not have known that the defendants may have committed malpractice
by missing Matos's diverticulitis until they received the autopsy
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report. But, as Appellants themselves acknowledge in their opening
brief, the "FTCA two year limitation period allows a plaintiff to
investigate, [and to] confer [with] medical professionals for the
purpose of assessing whether there has been negligence and decide
whether to sue." (emphasis added). The FTCA statute of limitations
does not wait until a plaintiff knows that the challenged action
legally constitutes medical malpractice. Cascone, 370 F.3d at
104; see also Skwira, 344 F.3d at 75-76. Nor does the claim wait
to accrue while a malpractice plaintiff gathers medical reports
when that plaintiff already has in his possession the critical
information necessary to ascertain the probable cause of the
relevant injury. See Sánchez, 740 F.3d at 53 (citing T.L. ex rel.
Ingram v. United States, 443 F.3d 956, 964-65 (8th Cir. 2006))
(finding that delay in obtaining medical reports did not toll
limitations period where plaintiff failed to show "how their
absence precluded him from timely filing his claim"). While the
autopsy report further detailed that the "intestinal perforation"
was a torn diverticula in Matos's colon, the information contained
in Matos's death certificate -- coupled with Appellants' knowledge
of Matos's treatment at SIM and HURRA -- was more than sufficient
to trigger Appellants' duty to investigate. See Rotella v. Wood,
528 U.S. 549, 555-56 (2000) ("A person suffering from inadequate
treatment is thus responsible for determining within the
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limitations period then running whether the inadequacy was
malpractice.").
Appellants further contend that, in light of Matos's
morbid obesity and hypertension, it was unreasonable for the
district court to require them to know the cause of Matos's death
before they received the autopsy report. Appellants state that,
unlike in Sánchez, in which the court found that "[t]he death of
a generally healthy woman in childbirth is sufficiently rare in
this country today as to make most reasonable people ask why it
happened," 740 F.3d at 52, a reasonable person would not have
questioned why an unhealthy person, such as Matos, died, especially
given the frequency with which hospitalized patients die of
sepsis.12 It was only when they learned that Matos suffered from
diverticulitis, uncommon in a man of his age,13 that Appellants
believe a reasonable person would have questioned whether
malpractice occurred.
12 Appellants point to several studies, including one from an
agency within the USDHHS, to support their contention that
septicemia is both a common and deadly disease.
13 In support of this argument, Appellants cite a 2014 research
paper from the undergraduate Radiographic Science program at Idaho
State University. Chris Van Orden, Diverticulitis, Idaho State
Univ., http://www2.isu.edu/radsci/papers14/18_2014.pdf (last
visited April 9, 2018).
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This argument, however, ignores the full scope of the
information provided in Matos's death certificate, as well as the
timing of Matos's death. The death certificate provided to
Appellants on March 8, 2010, listed not only that Matos died of
sepsis, but that the sepsis was secondary to peritonitis, which
was secondary to intestinal perforation. Even if we were to assume
that knowledge that Matos died of septic shock, without more, was
insufficient to trigger Appellants' duty to investigate, in this
case they were armed with far more to raise their suspicions. They
knew the symptoms that Matos suffered (severe abdominal pain,
constipation, and fever), the treatment given (or, more precisely,
not given), and the direct, medical cause of death (septic shock,
secondary to peritonitis, secondary to intestinal perforation).
Appellants also knew that this resulted in Matos's death only two
days after Dr. Román diagnosed him with "abdominal pain" and
discharged him within approximately two hours and forty minutes of
his arrival at SIM. Appellants had sufficient information14 to
require them to begin to investigate their claims, and could have
"file[d] an administrative claim and preserve[d their] rights
14 Appellants' inclusion of the fact that, on the day of Matos's
death, "an unidentified doctor told family members that Mr. Matos
ha[d] died due to a heart attack," provides no support for their
claim. It is undisputed that Appellants received a copy of Matos's
death certificate, informing them of the information described
above, on March 8, 2010.
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under the FTCA" within the two-year statute of limitations ending,
at the latest, on March 8, 2012. Skwira, 344 F.3d at 81.
VI.
Despite the tragic death of their loved one, we
unfortunately must conclude -- like the district court before us
-- that Appellants' action seeking compensatory damages for the
allegedly negligent act of a federal employee is time-barred under
the FTCA's statute of limitations.
Affirmed.
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