Arianna Blanche v. United States , 811 F.3d 953 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-1868
ARIANNA BLANCHE, a minor, by
LATOYA BLANCHE, guardian of
ARIANNA BLANCHE,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 7332 — Thomas M. Durkin, Judge.
ARGUED JANUARY 12, 2016 — DECIDED FEBRUARY 2, 2016
Before BAUER and HAMILTON, Circuit Judges, and PETERSON,*
District Judge.
BAUER, Circuit Judge. Arianna Blanche (“Arianna”), by her
mother and guardian Latoya Blanche (“Latoya”), filed suit
*
Of the United States District Court for the Western District of Wisconsin,
sitting by designation.
2 No. 15-1868
against the United States under the Federal Tort Claims Act
(“FTCA”) for injuries that Arianna sustained during birth. The
United States moved for summary judgment, arguing that
Arianna’s claims were not timely under the FTCA’s statute of
limitations. The district court granted the motion, and Arianna
appealed. For the reasons that follow, we affirm.
I. BACKGROUND
While Latoya was pregnant with Arianna, she received her
prenatal care at the Will County Community Health Center
(“Health Center”), from February 11, 2008, to August 27, 2008,
for a total of 12 visits. The Health Center received federal grant
funding from the United States Public Health Service pursuant
to 42 U.S.C. § 254b.
On September 2, 2008, Latoya entered the emergency room
at Silver Cross Hospital and Medical Center (“Silver Cross”)
because she was suffering from abdominal pain. She was
directed to the labor and delivery unit, where Dr. Husam
Marsheh (“Dr. Marsheh”) decided to induce labor. Although
Dr. Marsheh was also affiliated with the Health Center, he did
not treat Latoya during her prenatal care appointments.
During the delivery, Arianna became stuck in the birth
canal. Dr. Marsheh had Latoya continue to push while he
moved her into different positions. Latoya testified at her
deposition that she was scared and that it felt like the baby was
stuck for nearly 20 minutes, but she acknowledged that it was
probably less. Latoya also testified that at some point,
Dr. Marsheh “hollered” at the nurses and asked “Who was her
doctor? Who was her doctor? Find out who her doctor was.”
Finally, after Dr. Marsheh had Latoya turn her body in a
No. 15-1868 3
certain position, she heard a “popping sound,” and then
Dr. Marsheh was able to deliver Arianna.
Arianna was born on September 4, 2008, and weighed 11.7
pounds (a condition known as “macrosomia,” in which the
child has a significantly larger than average birth weight).
Once Arianna was born, several other doctors entered the
room and rushed Arianna out. Latoya asked “What’s wrong
with my baby? What’s wrong with my baby?” and began to
cry. The nurses reassured her that Arianna was going to be
alright. After giving birth, the next time Latoya saw Arianna
was when Arianna was in the Intensive Care Unit, and her
right arm was in a splint. When Latoya asked why Arianna’s
arm was in a splint, it was explained to her that Arianna
sustained an injury during birth.
In addition, at some point after the delivery, Dr. Marsheh
“apologized” to Latoya regarding Arianna’s difficult birth.
Latoya was questioned about this conversation several times
in her deposition:
Q: You don’t remember anything about [the conversation
with Dr. Marsheh]?
A: No. The only thing that I remember Dr. Marsheh
saying is after I had my baby was … . I remember him
coming and apologizing to me. It was like, I’m sorry
about the delivery of your baby and stuff like that.
And that was all. I mean, I was just happy that my
baby was alive … . [t]hat’s all I remember.
Q: And he apologized to you. When was this?
4 No. 15-1868
A: I don’t remember. I just remember him saying, I’m sorry
for the delivery of your baby and all that other stuff.
…
Q: Tell me as closely as you can what exactly
Dr. Marsheh said to you when he came in and apolo-
gized to you.
A: He was just saying that he was sorry, and I assumed
that he was sorry for the birth of my baby and how
that she was delivered.
…
Q: And so when Dr. Marsheh apologized for that, can
you remember what his exact words were?
A: No. I just remember him saying that he was sorry.
Prior to leaving the hospital, Arianna was diagnosed with
Erb’s Palsy. Erb’s Palsy involves the weakness of the arm as a
result of an injury to the brachial plexus, the nerves surround-
ing the shoulder. Although Latoya knew of Arianna’s diagno-
sis, she did not understand that Erb’s Palsy involved damage
to the nerves connecting to Arianna’s right arm until over a
year after the birth when Arianna was with a specialist at
Children’s Memorial Hospital in Chicago.
Latoya left Silver Cross and returned home with Arianna,
whose right arm was still in a splint. Upon seeing Arianna’s
arm, Latoya’s friends and family asked her if she had filed a
lawsuit or retained a lawyer. Within one or two weeks after
Arianna’s birth, Latoya met with an attorney in Joliet, Illinois.
In Latoya’s deposition, she was asked why she sought out the
No. 15-1868 5
Joliet attorney, to which she responded: “I guess to pursue a
lawsuit against the hospital, because of my [baby’s] arm.”
Latoya ultimately did not retain this attorney because she did
not believe he was a good lawyer.
After the meeting with the Joliet attorney, Latoya did not
meet with another lawyer for almost a year. In August 2009,
Latoya saw a law firm’s television commercial that indicated
that if your child suffered from Erb’s Palsy, you may have a
claim for medical malpractice and should call the telephone
number listed. Latoya called the number and eventually
retained counsel on August 10, 2009. In October 2009, the law
firm sent requests for Latoya’s medical records to Silver Cross
and the Health Center. Counsel received her prenatal records
from the Health Center in February 2010 and her complete
labor and delivery records from Silver Cross in April 2010.
Despite having all of the pertinent medical records by April
2010, counsel waited over a year before filing suit.
On May 4, 2011, Arianna, by her guardian and mother
Latoya, filed a lawsuit in Illinois state court against the Health
Center, Silver Cross, Dr. Marsheh, and the prenatal care
providers from the Health Center. On November 29, 2011, the
United States removed the matter to federal court, pursuant to
28 U.S.C. § 2679(d)(2) and 42 U.S.C. § 233, arguing that at the
time of the incident, the Health Center, Dr. Marsheh, and the
prenatal care providers at the Health Center were deemed
employees of the United States for purposes of the FTCA.
Upon removing the case, the United States filed a motion to
dismiss for failure to exhaust administrative remedies pursu-
6 No. 15-1868
ant to 28 U.S.C. § 2675(a), which the district court granted on
December 15, 2011.1
On February 10, 2012, Arianna, by her guardian and mother
Latoya, presented her claim to the United States Department
of Health and Human Services (“HHS”). On August 23, 2012,
the HHS denied the claim under the FTCA’s two-year statute
of limitations, pursuant to 28 U.S.C. § 2401(b). On
September 13, 2012, Arianna, by her guardian and mother
Latoya, filed her complaint in the district court against the
United States complaining of the injuries Arianna suffered
resulting from the actions of Dr. Marsheh and the prenatal care
providers. Her complaint makes several of the same allegations
against both Dr. Marsheh and her prenatal care providers, such
as failure to diagnose macrosomia, failure to offer Latoya the
option to proceed by way of a Cesarean Section (“C-Section”),
and inappropriately allowing Arianna to be delivered vagi-
nally. The complaint also alleges that Dr. Marsheh “performed
inappropriate maneuvers” and “applied excessive traction on
the abdomen” during the delivery. In addition, the complaint
states that Latoya’s prenatal care providers failed to properly
examine her and assess the size of her fetus, failed to “correlate
the week 37 ultrasound findings with a clinical examination,”
and failed to determine the size of the fetus “during the
prenatal work up and evaluation.”
On March 17, 2015, the district court granted summary
judgment in favor of the United States, holding that Arianna’s
1
The district court also remanded Arianna’s lawsuit against Silver Cross
to the Illinois state court.
No. 15-1868 7
claims against Dr. Marsheh and her prenatal care providers
were barred by the statute of limitations. This appeal followed.
II. DISCUSSION
We review the district court’s grant of summary judgment
de novo, and grant all reasonable inferences in favor of the non-
moving party. Bernier v. Morningstar, Inc., 495 F.3d 369, 372–73
(7th Cir. 2007). Summary judgment is appropriate if there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
In this case, both the claims against Dr. Marsheh and
against the prenatal care providers are treated as a lawsuit
against the United States for purposes of the FTCA. 42 U.S.C.
§ 233(g). As a result, the FTCA statute of limitations applies,
which states that a “tort claim against the United States shall be
forever barred unless it is presented in writing to the appropri-
ate Federal agency within two years after such claim accrues.” 28
U.S.C. § 2401(b) (emphasis added). However, the FTCA’s
“savings provision” allows a plaintiff’s claims to proceed as
timely if she filed a civil action within two years of her claim’s
accrual and presented the complaint to the appropriate federal
agency within 60 days of her claim’s dismissal. See Arroyo v.
United States, 656 F.3d 663, 668 (7th Cir. 2011); see also 28 U.S.C.
§ 2679(d)(5).
Here, the FTCA’s savings provision applies because
Arianna presented her complaint to the HHS within 60 days of
her claims’ dismissal. But, she filed her initial civil action in
Illinois state court on May 4, 2011. Therefore, the issue in this
case is whether Arianna’s claims against the United States
8 No. 15-1868
resulting from her delivery and her prenatal care accrued
before May 4, 2009.
“An FTCA claim accrues when: (A) an individual actually
knows enough to tip him off that a governmental act (or
omission) may have caused his injury; or (B) a reasonable
person in the individual’s position would have known enough
to prompt a deeper inquiry.” Arroyo, 656 F.3d at 669 (emphasis
in original). Thus, it allows for either a subjective analysis or an
objective analysis. Id. (citation omitted). Further, medical
malpractice claims do not accrue when the plaintiff knows that
her injury was caused by a doctor. Rather, the accrual date is
when the plaintiff has enough information to suspect, or a
reasonable person would suspect, that the injury “had a
doctor-related cause.” Id. at 672–73 (citing United States v.
Kubrick, 444 U.S. 111, 123 (1979)).
In its brief, the United States argues that if a birth injury
occurs and the plaintiff reasonably suspects that it was caused
by a doctor either during delivery or during her prenatal care,
then the plaintiff’s claims accrue against all doctors involved in
her pregnancy. We disagree. In E.Y. ex rel. Wallace v. United
States, we stated that:
[w]hen a person suspects, or a reasonable per-
son would suspect, that her injury was caused
by negligent medical care, claims regarding
other doctor-related causes of that injury that
share a time and place with the injury’s suspected
cause also accrue … . However, claims that are
distinct in time, or distinct in place, or that relate to
No. 15-1868 9
a different injury do not accrue solely on that
basis.
E.Y. ex rel. Wallace v. United States, 758 F.3d 861, 868 (7th Cir.
2014) (emphasis added) (relying on the standard suggested in
Goodhand v. United States, 40 F.3d 209 (7th Cir. 1994)).2 In E.Y.
ex rel. Wallace, we went on to find that the plaintiff’s claims
against her prenatal care provider were sufficiently distinct in
time and place from her claims against the delivery hospital,
and thus her claims did not accrue at the same time. E.Y. ex rel.
Wallace, 758 F.3d at 868.
In this case, Arianna brings claims against Dr. Marsheh for
acts that occurred during delivery at Silver Cross (such as use
of improper techniques), and claims against her prenatal care
providers for acts that occurred while Latoya was at the Health
Center (such as failure to correlate the ultrasound findings
with Latoya’s examination to determine that Arianna was too
large for a vaginal birth). Therefore, since her complaint
involves different doctors who committed different acts that
were distinct in time and place, we will examine the claims
against Dr. Marsheh and the prenatal care providers separately
to determine when each accrued.
2
The United States does not concede that the standard in E.Y. ex rel. Wallace
is correct, but acknowledges in a footnote that it did not seek en banc review
in E.Y. ex rel. Wallace and that the argument to reconsider the case is “for
another day.” Since the United States claims that it is still entitled to
summary judgment regardless of E.Y. ex rel. Wallace, we will not re-examine
the opinion.
10 No. 15-1868
A. Claims against Dr. Marsheh
We agree with the district court that the claims against
Dr. Marsheh accrued sometime in September 2008, shortly
after Arianna’s birth. By the time Latoya left the hospital, she
had experienced a difficult delivery, in which Arianna was
lodged in the birth canal and had to be rushed to the Intensive
Care Unit immediately after she was born. Arianna had to
leave the hospital with her right arm in a splint, which Latoya
understood was a result of the difficult delivery. Latoya also
knew that Arianna weighed 11.7 pounds at birth, which is
unusually large. Therefore, Latoya (or a reasonable person in
Latoya’s position) had enough information shortly after
Arianna’s birth to reasonably inquire into whether
Dr. Marsheh caused the injury by inducing labor and deliver-
ing the baby vaginally instead of through a C-Section.3
Further, Latoya stated at her deposition that she met with
an attorney to inquire into a possible case against the hospital
within a week or two after Arianna’s birth. She claimed she did
not retain that attorney because she thought he was not a good
lawyer, not because she thought Dr. Marsheh was not involved
with Arianna’s injury. This indicates that Latoya subjectively
believed that Arianna’s injury may have been caused by
Dr. Marsheh’s delivery.
3
Under the FTCA, the statute of limitations is not tolled during the
putative plaintiff’s minority; rather, the parent’s knowledge is imputed to
the minor plaintiff. McCall ex rel. Estate of Bess v. United States, 310 F.3d 984,
988 (7th Cir. 2002). There is an exception for cases where the parent or
guardian has adverse interests to the best interests of the minor plaintiff, but
this is not such a case. Id.
No. 15-1868 11
Regardless of Latoya’s subjective beliefs, a reasonable
person under the circumstances would have had enough
information to inquire further into whether Dr. Marsheh
caused Arianna’s injury. Therefore, we hold that the statute of
limitations on the claims against Dr. Marsheh began to run
shortly after Arianna’s birth in September 2008. Thus, the
statute of limitations expired around September 2010, well
before Arianna filed suit in May 2011.
Before we proceed, it is worth noting Dr. Marsheh’s
conversation where he “apologized” to Latoya shortly after
Arianna’s difficult birth. The district court and the United
States claim that this should have led Latoya to inquire into
whether Dr. Marsheh caused Arianna’s injury. We reject this
premise. First, Latoya’s deposition testimony is unclear what
exactly Dr. Marsheh said, other than that he was sorry. The
United States argues that this constituted an apology, which in
turn indicates an “acknowledgement of fault.” In contrast,
Arianna argues that it was merely an expression of sympathy.
Since both are reasonable inferences, at this stage of the
litigation we must view the conversation in Arianna’s favor by
finding that it was an expression of sympathy. Second, a doctor
expressing his sympathy for a new mother who had just
endured a painful delivery that resulted in an injured child
should not be construed as a confession of malpractice. This is
exactly the sort of “ghoulish consequence” that our circuit has
long sought to prevent. See Drazan v. United States, 762 F.2d 56,
59 (7th Cir. 1985). “[T]he 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.” E.Y. ex rel. Wallace, 758 F.3d at 867.
12 No. 15-1868
B. Claims Against the Prenatal Care Providers
We also agree with the district court that the statute of
limitations for the claims against the prenatal care providers
accrued shortly after Arianna’s birth in September 2008. Latoya
argues that she did not possess enough information to reason-
ably inquire into whether her prenatal care providers caused
Arianna’s injuries until after she saw the commercial discuss-
ing Erb’s Palsy in August 2009. To support her argument, she
analogizes her case to E.Y. ex rel. Wallace. By contrast, the
United States argues that Latoya obtained sufficient informa-
tion shortly after Arianna’s birth, and analogizes this case to
Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013). Both cases
are similar to the present matter.
In E.Y. ex rel. Wallace, the plaintiff gave birth to her child in
April 2005, who was born limp and purple, possibly due to
oxygen deprivation during a difficult delivery. 758 F.3d at
863–64. In May 2006, the child was diagnosed with diplegic
cerebral palsy. Id. at 864. Shortly thereafter, the plaintiff met
with her uncle (an attorney) who suggested that she seek legal
counsel. Id. In November 2006, she signed a retainer agreement
with a law firm. Id. On November 28, 2006, the law firm
requested the plaintiff’s prenatal care records, as well as her
medical records from the delivery hospital. Id. On
December 14, 2006, the plaintiff received a partial set of her
prenatal care records, but did not receive her entire prenatal
medical records until October 2007. Id. On December 10, 2008,
she filed suit against her prenatal care providers and the doctor
who delivered her child. Id. The district court granted
summary judgment in favor of the United States, finding that
the plaintiff’s claims against her prenatal care providers
No. 15-1868 13
accrued by November 2006, when she requested her prenatal
medical records. Id. at 864–65. We reversed, holding that the
earliest time the plaintiff had sufficient information for a
reasonable person to inquire into whether her prenatal care
providers caused the child’s injury was on December 14, 2006,
when she received her partial prenatal medical records. Id. at
868 (“Only at that time was there a solid indication that
something might have been amiss with her prenatal care,
making that the first time that a reasonable person necessarily
would have inquired further.”).
In Arteaga, the plaintiff gave birth vaginally to a baby that
weighed 11 pounds, but the child became stuck in the plain-
tiff’s pelvis during the delivery. 711 F.3d at 830. As a result, the
child injured the nerves in her shoulder. Id. The baby was born
in July 2004, and the plaintiff obtained her medical records
and met with an attorney a few months later. Id. That lawyer
discouraged her from filing a lawsuit. Id. In October 2006, the
plaintiff met with a second lawyer, who agreed to represent
her, but then withdrew in February 2008. Id. In June 2009, the
plaintiff consulted with a third lawyer, who referred her to a
fourth lawyer, who then filed suit in March 2010 against the
plaintiff’s prenatal care providers. Id. We held that her claims
accrued by the beginning of 2005 when the plaintiff, who had
suspected that the child’s injuries were preventable shortly
after her birth, obtained the medical records and consulted
with an attorney. Id. at 831.
Although in both E.Y. ex rel. Wallace and Arteaga the plain-
tiffs’ claims against the prenatal care providers did not accrue
until they received the medical records, we did not broadly
hold in either case that a plaintiff’s claim against a prenatal
14 No. 15-1868
doctor for a birth injury can never accrue until the plaintiff
obtains the pertinent medical records. Further, we agree with
the view expressed by the Second Circuit Court of Appeals
that “[i]nstead of mechanically setting the date of accrual to
coincide with the retention of counsel, the receipt of medical
records, or any other event in the litigation process … we
determine when [the plaintiff] … had reason to suspect that the
injury [the child] suffered related in some way to the medical
treatment [s]he received.” A.Q.C. ex rel. Castillo v. United States,
656 F.3d 135, 142 (2d Cir. 2011) (quotations and citation
omitted).
By examining the circumstances to determine when Latoya
had enough information to know or reasonably suspect that
Arianna’s injuries were caused by her prenatal care providers,
we find that this case is distinguishable from E.Y. ex rel.
Wallace. In E.Y. ex rel. Wallace, the plaintiff did not receive the
child’s diagnosis until a year after the delivery, and had no
indication that her prenatal care could have caused the child’s
injury until she received the partial prenatal medical records.
Here, although Latoya claims that it took a year for her to
understand that Erb’s Palsy involved nerve damage, it is
undisputed that when she left the hospital she knew that
Arianna was diagnosed with Erb’s Palsy, that Arianna’s arm
was in a sling, that Arianna had weighed 11.7 pounds at birth
which caused her to become lodged in the birth canal during
delivery, and that Arianna’s injury resulted from her delivery.
A reasonable person would have inquired into whether the
prenatal care providers caused Arianna’s injury by failing
to detect Arianna’s weight beforehand and recommend a
C-Section rather than a vaginal delivery. Also, similar to the
No. 15-1868 15
plaintiff in Arteaga (who experienced the same injury), Latoya
was suspicious early on that the injury was preventable, as
evidenced by her meeting with an attorney within a few weeks
of Arianna’s birth.
In addition, there is evidence that during the delivery,
Latoya subjectively believed that her prenatal care providers
caused Arianna’s injury. When Arianna was lodged in the
birth canal, Dr. Marsheh hollered, “Who was her doctor? Who
was her doctor? Find out who her doctor was.” At Latoya’s
deposition, she was asked what she understood Dr. Marsheh
to mean, and she responded:
I guess … he wanted to know, like, who took
care of [me] while [I] was pregnant, because that
was my first time I was seeing Dr. Marsheh, at
the hospital … . I just felt like maybe he want to
know details, like did they know that this was
an enlarged baby or anything like that. Like did
they even put it in the records? Why didn’t they
—didn’t record this, that this was going to be a
large baby, that he needs a C-section. I mean,
from my perception. That’s what I was thinking,
like maybe he want to know why didn’t nobody
know that this baby was large?
Latoya’s response suggests that she subjectively believed
around the time of Arianna’s birth that Arianna’s injury may
have been caused by her prenatal care providers failing to
discover that she was too large for a vaginal delivery.
Later in her deposition, however, Latoya claimed that she
did not know at that time what Arianna’s size had to do with
16 No. 15-1868
her prenatal care provider. Regardless, as discussed above, a
reasonable person under the circumstances would have had
enough information shortly after the birth to reasonably
believe that the prenatal care providers may have caused
Arianna’s injuries by failing to discover her large size and
recommend a C-Section rather than a vaginal delivery. As
a result, we hold that the claims against the prenatal care
providers also accrued around September 2008. Thus, the
two-year statute of limitations had expired before Arianna
filed suit in May 2011.
C. Equitable Tolling
Arianna argues alternatively that even if her claims accrued
more than two years before her complaint was filed, equitable
tolling should apply. Equitable tolling is reserved for rare
instances in which a plaintiff was “prevented in some extraor-
dinary way from filing his complaint in time.” Threadgill v.
Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir. 2001) (citation and
quotation omitted). 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. See Credit Suisse Securities (USA)
LLC v. Simmonds, 132 S. Ct. 1414, 1419 (2012) (citation omitted)
(discussing “long-settled equitable-tolling principles”); see also
Menominee Indian Tribe of Wisconsin v. United States, __ S. Ct. __,
2016 WL 280759, at *4 (2016) (holding generally that, “the
second prong of the equitable tolling test is met only where the
circumstances that caused a litigant's delay are both extraordi-
nary and beyond its control.”).
No. 15-1868 17
Latoya did not diligently pursue Arianna’s claim. Although
she met with an attorney within a few weeks of Arianna’s
birth, she failed to hire him because she did not think he was
a good lawyer, and then did nothing else to pursue her
potential lawsuit for almost a year. In addition, Latoya finally
obtained counsel and had access to all of her medical records
by April 2010, at which point she still had roughly five months
to timely file suit. It is troubling that her lawsuit was not filed
for over a year after this point, in May 2011. This indicates that
not only did she fail to diligently pursue her claim, but her
lawyers did as well.
In addition, we reject Arianna’s argument that she was
prevented from filing her complaint on time because the
Health Center did not reveal its federal status. There is no
evidence that the Health Center made any attempt to conceal
its federal status. Rather, it appears that Arianna’s lawyers did
not adequately research into whether the Health Center was
federally affiliated.
As we stated in Arteaga, the Public Health Service operates
a website that identifies all health centers that receive federal
funds and thus can only be sued under the FTCA. Arteaga, 711
F.3d at 834 (“Members of the medical malpractice bar should
know enough to consult the website when approached by a
prospective client.”); see also U.S. Dep’t of Health & Human
Servs., Find a Health Center, http://findahealthcenter.hrsa.gov/
(last visited February 1, 2016). In this case, Arianna has not
presented any evidence that her lawyers searched this database
to determine the Health Center’s federal status. Further,
Arianna does not indicate whether her attorneys took any
action to determine the Health Center’s federal status. “It’s not
18 No. 15-1868
asking too much of the medical malpractice bar to be aware of
the existence of federally funded health centers that can be
sued for malpractice only under the Federal Tort Claims Act.”
Arteaga, 711 F.3d at 834. Medical malpractice attorneys have an
obligation upon being retained by a new client to research the
possible defendants at issue. This research involves examining
whether the possible defendants are federally affiliated, and
thus can only be sued under the FTCA. See, e.g., A.Q.C. ex rel.
Castillo, 656 F.3d at 145 (“It is hard to understand why any
lawyer … would not investigate the federal nature of potential
defendants as part of standard due diligence in every medical
malpractice case.”). Therefore, equitable tolling is inappropri-
ate in this case.
Arianna relies heavily on Santos ex rel. Beato v. United States,
559 F.3d 189 (3rd Cir. 2009), to support her equitable tolling
argument. But Santos is distinguishable from this case. In
Arteaga, we examined the Santos decision and emphasized that
equitable tolling was appropriate in that case because the
plaintiff had retained counsel within months of the child’s
injury, the plaintiff’s counsel diligently researched the possible
defendants, the state court suit was filed only five months late,
the name of the provider “York Health Corporation” sounded
like a private enterprise, and there was no “publicly available
information” indicating the medical provider’s federal status.
Arteaga, 711 F.3d at 835. In contrast, here Latoya waited almost
a year after Arianna’s injury to retain counsel, counsel did not
diligently research the Health Center’s possible federal status,
the state suit was filed eight months late (albeit not a signifi-
cant difference), the name “Will County Community Health
Center” sounds like a government entity rather than a private
No. 15-1868 19
enterprise, and there was a publicly available website that
indicated the Health Center’s federal status.
Arianna also argues that equitable tolling should apply
regarding her claim against Dr. Marsheh because there was no
reason for her to suspect that he was affiliated with the Health
Center. The record shows that Latoya received all of her
prenatal care at the Health Center and understood that the
Health Center’s physicians only delivered at Silver Cross.
Further, Latoya agreed that that was one of the reasons she
went to Silver Cross when she started suffering from abdomi-
nal pains. Therefore, she should have reasonably suspected
that Dr. Marsheh was affiliated with the Health Center.
Furthermore, there is no evidence that Arianna’s counsel
undertook any research to discern whether Dr. Marsheh was
affiliated with the Health Center, nor does the record show that
there were any impediments to discovering this information.
Therefore, equitable tolling regarding the claims against
Dr. Marsheh is also inappropriate.
III. CONCLUSION
For the foregoing reasons, the decision of the district court
is AFFIRMED.