Arroyo v. U.S.

Brief Fact Summary.

Maria Solorzano Arroyo (Plaintiff) gave birth to a baby boy, Christian Arroyo, who caught a bacterial infection from his mother during the delivery.  The physicians involved in Christian’s delivery and post-delivery care failed to diagnose and treat the infection in time to prevent the severe brain injuries Christian suffered as a result.  Several years later, Christian’s parents (Plaintiffs) sued the Erie Family Health Center (“Erie Center” or “U.S.”) (Defendant) under the Federal Tort Claims Act.  The U.S. (Defendant) challenged the suit on the basis that it violated the statute of limitations.  The district court found the U.S. (Defendant) liable for Christian’s injuries.

Synopsis of Rule of Law.

The proper test for a Federal Torts Claims Act claim accrues when the plaintiff discovers, as would a reasonable person in the same position, that he has been injured by an act or omission that can be attributed to the government.

Facts.

 Maria Solorzano Arroyo (Plaintiff) and Carlos Arroyo (Plaintiff) conceived a child and received low-cost medical care at the Erie Family Health Center (“Erie Center” or “U.S.”) (Defendant).  The clinic received federal funds in order to treat low income, underinsured patients.  While providing her prenatal care, the Erie Center’s (Defendant) doctors did not find any problems with Plaintiff’s pregnancy.  Plaintiff went into labor more than one month early and their son Christian was then born premature at a local hospital.  Plaintiff had not undergone the usual series of diagnostic tests that were usually performed in the month prior to delivery, including a test for certain bacteria that is commonly found.  These are important diagnostic tests because they indicate whether or not an infant will be at risk of contracting any diseases from his or her mother’s blood during birth so that doctors and nurses can prepare for this and reduce the risk of harm to the baby.
  Medical professionals use a two-pronged approach to protect infants when the mother has not had these diagnostic tests performed.  First, at the delivery stage, doctors must observe whether four risk factors are present or absent.  Second, once the baby is born, doctors must be vigilant in looking for signs that would indicate the presence or absence of neonatal sepsis (a bacterial infection in the baby’s bloodstream).  If any sign of infection is found, the doctor must immediately administer antibiotics to prevent the infection from spreading.  Certain bacteria are fairly benign in adults, therefore mothers can carry bacteria through pregnancy with no symptoms.  Newborn infants can become infected with the disease during the delivery and, if not treated immediately, the infant can suffer severe and permanent brain injuries.
  Christian had symptoms shortly after birth that indicated he had been infected by exposure to his mother’s blood.  However, the obstetrician and pediatrician responsible for taking care of Plaintiff did not detect the infection or treat Christian with antibiotics.  This failure caused Christian to suffer severe and permanent brain injuries.  When Christian was discharged on July 11, 2003, doctors told Plaintiffs that Christian had suffered brain injuries that were caused by his exposure to his mother’s blood during childbirth.  The Plaintiffs were not informed that Christian’s injuries could have been prevented if the bacterial infection had been treated earlier.  Because of the injuries to his brain, Christian suffered from cerebral palsy, spastic quadriplegia, a seizure disorder, an inability to swallow, a communications deficit, incontinence, and permanent pain.
  When Mrs. Arroyo (Plaintiff) gave birth to her second son in July of 2004, she learned about  neonatal antibiotics for the first time.  The Plaintiffs saw a commercial in approximately October of 2004 that indicated Christian’s doctors may have caused his injuries and they might have grounds for a lawsuit.  The Plaintiffs contacted a law firm after they saw the commercial and began to investigate the cause of Christian’s injuries.
  Since both of Christian’s doctors were affiliated with the Erie Center (Defendant) and were part of the medical staff, the United States Department of Health and Human Services (HHS) has deemed the Erie Center (Defendant) and its employees to be employees of the U.S. Public Health Service.  Accordingly, the Erie Center (Defendant) and its employees, while performing within the scope of their duties, are shielded from liability by the Federal Tort Claims Act (FTCA), with the United States (U.S.) (Defendant) assuming liability for any negligent acts they commit.  The Plaintiffs filed a state court lawsuit on December 30, 2005, claiming that both doctors failed to provide proper prenatal care to Christian at the Erie Center (Defendant) and during the time that surrounded his birth.
  In January 2010, at the end of the bench trial, the court found in favor of the Plaintiffs.  The court then ordered the parties to file post-trial briefs addressing the issues of damages and the statute of limitations defense by the U.S. (Defendant).  The court denied the defense and awarded the Plaintiffs over $29 million in damages for various past and future losses and expenses.  The U.S. (Defendant) appealed.

Issue.

Does the proper test for a Federal Torts Claims Act claim accrue when the plaintiff discovers, as would a reasonable person in the same position, that he has been injured by an act or omission that can be attributed to the government?

Held.

(Cudahy, J.)  Yes.  The proper test for a Federal Torts Claims Act claim accrues when the plaintiff discovers, as would a reasonable person in the same position, that he has been injured by an act or omission that can be attributed to the government.  On appeal, the only part of the district court’s decision being challenged by the U.S. (Defendant) was the court’s rejection of their statute of limitations defense.
  When a claim accrues under the FTCA, federal law governs.  A plaintiff’s claim accrues when: (A) the plaintiff discovers; or (B) a reasonable person in the same position would have discovered that he has been injured by an act or omission attributable to the government.  It is worth noting that an individual’s FTCA claim accrues only when an individual knows (or should have known) of the “cause that is in the government’s control, not a concurrent but independent cause that would not lead anyone to suspect that the government had been responsible for the injury.”  There are two final aspects of our FTCA claim accrual jurisprudence that call for discussion.  First, note particularly the disjunctive nature of the claim accrual inquiry.  An FTCA claim accrues when: (A) a person actually knows enough to tip them off that a governmental act or omission may be responsible for their injury; or (B) a reasonable person in the same position would have known enough to inquire further.  Therefore, the proper way to determine when the statute of limitations for FTCA claims begins to run is a two-part inquiry incorporating subjective and objective components.  A plaintiff’s claim accrues the first time the plaintiff knew, or a reasonably diligent person in the same position, reacting to any suspicious circumstances he or she may have been aware, would have found that a governmental act or omission may be responsible for the injury.
  Second, the accrual of a person’s FTCA claim is not postponed until the person obtains full knowledge of the cause of his injury.  Rather, accrual occurs when a person gets information that would prompt a reasonable person to make a further inquiry into a potential [government-related] cause of his or her injury.  A person does not need to have a reason to believe that the relevant governmental conduct was negligent; simply knowing there is a potential governmental cause is enough to start the clock ticking.  In other words, the statute of limitations begins to run when either the government cause becomes known or when a reasonably diligent person (in the tort claimant’s position) reacts to any suspicious circumstances he might have been aware of that would have discovered the government cause—whichever comes first.
  The U.S.’s (D) argument is rejected since the district court applied the proper claim accrual rule.  Clearly the district court considered whether the Plaintiffs had actually known that Christian’s injuries were attributable to a government doctor’s action or oversight.  Similarly, it is clear that the district court considered the objective part of the inquiry.  The only issue is whether the district court erred when it determined the date that: (A) the Plaintiffs knew; or (B) a reasonable person in the Plaintiffs’ position would have known enough to be suspicious of actions taken by Christian’s doctors that may have contributed to his injuries.
  The district court did not err in finding that the Plaintiffs did not actually know of a doctor-related cause until 2004.  The only information the hospital provided the Plaintiffs with was that Christian’s injuries were due to a blood infection he contracted during childbirth.  The fact that the Plaintiffs knew about the biological cause of Christian’s injuries, however, does not establish that the Plaintiffs knew that there was a malpractice-related cause also.  The record contains no evidence proving the Plaintiffs knew that the hospital’s physicians should have given antibiotics to Christian and his mother, that Christian’s infection was never treated following his birth, or that prompt treatment of his infection would have reduced or prevented damage from the infection.  Basically, the U.S. (Defendant) failed to present any evidence showing that the Plaintiffs possessed sufficient knowledge at the time of Christian’s discharge to cause their claim to accrue.
  The district court was correct in finding that a reasonably diligent person in the same position as the Plaintiffs in 2003 would have lacked enough information to prompt a further inquiry into whether Christian’s injuries were caused by his doctors.  In order to win with its statute of limitations defense, the U.S. (Defendant) needed to show that a reasonable person who learned that his or her infant’s injuries were caused by an infection that the baby contracted during childbirth, would have looked for possible doctor related causes of injuries.  The U.S. (Defendant) did not meet this burden.  First, they failed to present any evidence to establish that injuries caused by infections transmitted at birth are typically caused by doctors.  Second, and more significantly, the U.S. (Defendant) failed to argue that doctor related causes happen frequently enough that a reasonably diligent person would have looked into whether there was a doctor-related cause for Christian’s injuries.  A rule that forces patients to search their records whenever they receive medical treatment and to initiate preemptive litigation is inequitable, inefficient and—most importantly—contrary to the rational intuition that “reasonable man” tests are meant to embody.  Affirmed.

Concurrence.

(Posner, J.)  I join the court’s opinion with no reservations and write separately only to raise two general questions regarding limitations periods in medical malpractice litigation (specifically litigation under the Federal Tort Claims Act) that are presented by this case, but do not have to be answered in order to decide the case.  Both are related to the discovery rule: the rule that federal statutes of limitations do not begin to run until the prospective plaintiff finds out, or should have found out, that he has been injured—and who is responsible.  The first question is the role of the tort concept of the “reasonable person” in deciding whether the plaintiff “should have” discovered the injury and who caused it.  The second question is the relation of an ethical duty of candor by medical staff to the “should have” question.
  The goal of the average-person rule is to provide an added incentive, beyond that of moral duty or concern for personal safety, to avoid injuring people (or being injured).  However, this motivational system only works if potential injurers and potential victims are capable of exercising the care of the average person, or if not capable, can at least avoid situations where they are likely to cause or suffer injury.
  The Plaintiffs appear to be typical clients of the Erie Center (Defendant), and there is no way that holding them to the level of medical knowledge of the average person in American society would actually make them as knowledgeable as such a person.  That ruling would be nearly as unrealistic as ruling that the statute of limitations in a medical malpractice suit begins to run whenever a patient who had been trained as a physician would have found that he had been injured as a result of a medical act or omission, though the actual plaintiff had no medical training.  When the question in applying the discovery rule in a case of malpractice is what knowledge should be expected of the plaintiff, the court should determine either the knowledge of the particular plaintiff or make a judgment that applies to the subset of the population with a similar educational background and socioeconomic status as the plaintiff.
  If the Plaintiffs learned from someone that it was “highly possible” that their child’s injuries were the result of a failure to administer antibiotics to Mrs. Arroyo (Plaintiff) during childbirth, the statute of limitations would have begun to run.  At this point, they would have known, or reasonably should have known as understood in light of their socioeconomic position, that a cause of the injuries to their child might have been the failure to administer antibiotics to Mrs. Arroyo (Plaintiff).  Accordingly, they would have or should have known enough, with that information, to contact a lawyer or other expert for a consultation.
  However, if the Erie Center (Defendant) (or its backer, the U.S. (D)) wants to avoid being hit by old malpractice suits, it must simply level with patients (or in the case of a child, the parents of the patient) regarding possible causes of a medical injury.  Two months after his birth, when the Plaintiff’s baby was discharged by the hospital with brain injuries, doctors told the parents only that their baby’s injuries were caused by an infection he contracted from Mrs. Arroyo (Plaintiff) during childbirth.  Nothing was said that could have alerted the Plaintiffs there was a possibility that a medical act or omission had contributed to their baby’s infection.  The doctors did not have to confess liability.  All the Erie Center (Defendant) had to do was give the Plaintiffs a reasonably full account of the circumstances of the baby’s injuries—that antibiotics could have been given to the mother before the birth and to the child immediately after the birth and that if this had been done the injuries may have been less serious, or avoided altogether.
  Compliance with the ethical duty of disclosure of possible medical errors in simple, intelligible terms would give patients who are not medically sophisticated enough information to recognize that medical decisions might have contributed to the patient’s injuries.  I am not arguing that a breach of the ethical duty of disclosure is malpractice itself, although it could be if it kept the patient from getting medical treatment that would lessen the consequences of the original medical error.  I am not arguing that the disclosure be required to go beyond an acknowledgment of the possibility of medical error and become a confession that a medical error occurred; or that a doctor must explain that additional treatment might have prevented the patient’s injury if failure to provide that treatment would not have been negligent, because of the expense, side effects, or uncertain benefits of the treatment, as when a patient suffers an injury that would have been prevented if the doctor had performed a series of painful and expensive experimental tests.  But if a potential defendant in a medical malpractice suit wants to use the statute of limitations to his benefit, he should be required to disclose the information he knew that would alert the patient to the possibility of an error.  By doing so, the doctor can be sure that the statute of limitations will begin to run immediately and not years later, though even without that precaution, the statute of limitations might begin to run upon injury if the average member of the Plaintiff’s socio-economic level would have realized that his injury might have been caused by medical staff rather than by (or only by) an illness.
  The concealment in this case occurred prior to rather than after the statute of limitations began to run, because the concealment of the fact that the doctors had contributed to injuries the child suffered prevented the Plaintiffs from discovering the doctors’ contributory role.  The statute of limitations begins to run when discovery is made or should have been made by a reasonable person with a similar educational and socioeconomic background as the Plaintiffs.

Discussion.

In the Arroyo case, there was no struggle by the court to determine that the trial court employed the correct analysis of the U.S.’s (Defendant) statute of limitations affirmative defense.  The critical facts are whether a “reasonable person” would have or should have discovered the act or omission attributable to the U.S. (Defendant).  The focus on whether the Plaintiffs could have or should have known the reason for their child’s injuries was important, but easily discounted because of the lack of information of the hospital doctors and their own abilities to know anything further.  The issue of “concealment” weighed heavily in Judge Posner’s concurrence in delivering a scathing critique of the hospital’s ethical duty to the Plaintiffs.  To summarize, to be a “reasonable person” does not require any patient (or family of a patient) who suffers from a serious medical condition to investigate their medical records to determine the source of his or her illness.  There is no affirmative duty on behalf of the plaintiff to overcome a defendant’s affirmative defense.