In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2311
C HRISTIAN A RROYO , et al.,
Plaintiffs-Appellees,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 4912—Amy St. Eve, Judge.
A RGUED JANUARY 6, 2011—D ECIDED S EPTEMBER 1, 2011
Before E ASTERBROOK, Chief Judge, and C UDAHY and
P OSNER, Circuit Judges.
C UDAHY, Circuit Judge. Christian Arroyo contracted a
bacterial infection from his mother during his birth. The
physicians involved in Christian’s delivery and post-
delivery care failed to diagnose and treat this infection
in a timely manner, which caused the newborn to suffer
severe brain injuries. Several years later, Christian’s
parents filed suit against the United States under the
2 No. 10-2311
Federal Tort Claims Act. The district court found the
United States liable for Christian’s injuries, rejecting
the United States’ claim that the Arroyos’ claims were
untimely. We affirm.
I. Background
In 2002, Maria Solorzano Arroyo and Carlos Arroyo
conceived a child (collectively referred to as the Arroyos).
During the course of Solorzano Arroyo’s pregnancy, she
received low cost medical care at the Erie Family Health
Center, Inc. (Erie Center), a health clinic that received
federal funds for the purpose of treating low income,
underinsured individuals. The Erie Center’s doctors did
not detect any problems with Solorzano Arroyo’s preg-
nancy when providing her with prenatal care and fore-
casted her due date for June 12, 2003.
On May 16, 2003, Solorzano Arroyo went into labor.
She went to Northwestern Memorial Hospital and gave
birth to her son, Christian Arroyo in the early morning
hours of May 17, 2003. Because Christian’s birth was
more than a month premature, Solorzano Arroyo had not
undergone the battery of diagnostic tests, including a
test for Group B Streptococcus (GBS), that women
typically undergo in the month prior to delivery. These
diagnostic tests are extremely important, as they in-
dicate whether an infant will be at risk of contracting
any diseases from his or her mother’s blood during
birth and allow health care practitioners to take steps
to reduce the risks that such incidents will harm the infant.
No. 10-2311 3
When a mother has not had these diagnostic tests,
medical professionals protect infants by utilizing a two-
pronged approach. First, at the delivery stage, doctors
are required to observe the presence or absence of four
risk factors. Second, after the baby is born, doctors are
required to be vigilant in looking for signs indicating
the presence or absence of neonatal sepsis (a bacterial
infection of the baby’s bloodstream). If a medical profes-
sional finds any indications of infection, then she
must immediately administer antibiotics to prevent the
spread of infection. Because GBS is fairly benign in
adults, mothers can carry it asymptomatically during
pregnancy. Newborns can contract the disease during
birth and, unless it is treated immediately, it can cause
severe and permanent brain injuries.
Shortly after birth, Christian exhibited several symp-
toms indicating that exposure to his mother’s blood had
infected him with GBS. However, the obstetrician, Rahda
B. Reddy, M.D. (Dr. Reddy), and pediatrician, Verlainna
Callentine, M.D. (Dr. Callentine), responsible for taking
care of Solorzano Arroyo failed to detect the infection
and treat Christian with antibiotics. Because of this
failure, Christian suffered severe and permanent brain
injuries. If the doctors had promptly treated Christian,
it is likely that the damage done to Christian’s brain
would have been significantly reduced.
On July 11, 2003, Christian was discharged from North-
western Memorial hospital. At the time of discharge,
doctors informed the Arroyos that Christian had
suffered brain injuries and that the injuries were caused
4 No. 10-2311
by his exposure to his mother’s blood during birth. The
Arroyos were not told that Christian’s injuries could
have been prevented if the GBS infection had been
treated at an earlier point in time. As a result of the
injuries to his brain, Christian suffers from cerebral
palsy, spastic quadriplegia, a seizure disorder, an inability
to swallow, a communications deficit, incontinence
and permanent pain.
In July of 2004, Christian’s mother gave birth to her
second son and it was at this time that she first heard
about the use of neonatal antibiotics. In approximately
October of 2004, the Arroyos saw a lawyer’s television
commercial that indicated that Christian’s injuries could
have been caused by his doctors and that they might
have grounds for a lawsuit. After seeing this commercial,
the Arroyos contacted a law firm and began to
investigate the cause of Christian’s injuries.
On December 30, 2005, the Arroyos filed a state court
lawsuit, naming Drs. Reddy and Callentine as defendants,
alleging that both doctors failed to provide proper
prenatal care at the Erie Center and during the time
surrounding Christian’s birth. At the time of Christian’s
injuries, both Dr. Reddy and Dr. Callentine were affiliated
with the Erie Center and were on the Northwestern
Memorial Hospital medical staff. The United States
Department of Health and Human Services (HHS) has
deemed the Erie Center and its employees to be em-
ployees of the U.S. Public Health Service, pursuant to the
Federally Supported Health Centers Assistance Act, 42
U.S.C. § 233(g)-(n), as amended by the Federally Sup-
No. 10-2311 5
ported Health Centers Assistance Act of 1995, Pub. L. No.
104-73. Accordingly, the Federal Tort Claims Act (FTCA)
shields the Erie Center’s employees, which include
Dr. Reddy and Dr. Callentine, from liability while acting
within the scope of their duties, with the United States
assuming liability for any negligent acts they commit.
See 42 U.S.C. § 233(g)(1).
On April 19, 2006, while their suit in state court was
pending, the Arroyos filed an administrative claim
with HHS. See 28 U.S.C. § 2675 (requiring a claimant
instituting an action against the United States for injury
caused by a negligent act or omission of any employee of
the Government to first present the claim to the appro-
priate Federal agency). HHS denied the Arroyos’ claim,
as well as their subsequent request for reconsideration.
On August 30, 2007, within six months of HHS’s final
written denial, the Arroyos’ state court suit was removed
to the Northern District of Illinois and the United
States was substituted as the defendant, as required
by federal statute. See 28 U.S.C. § 2679(d) (requiring a
claimant’s tort suit against a federal employee to be
removed to a federal court in the district and division
in which the action was pending as well as requiring
the substitution of the United States as the defendant).
In January of 2010, the district court conducted a week-
long bench trial. At the conclusion of trial, the court
found in favor of the Arroyos. It held that both
Drs. Reddy and Callentine negligently failed to recognize
and act upon risk factors and signs indicating GBS in-
fection, and as such, caused Christian’s injuries by
6 No. 10-2311
failing to administer antibiotics. Even though the court
found that the government was liable for Christian’s
injuries, it ordered the parties to file post-trial briefs
addressing the issues of damages and the government’s
statute of limitations defense.
On April 2, 2010, the district court issued a written
opinion concluding that the Arroyos’ claim was filed
within the two year statute of limitations for claims filed
pursuant to the FTCA. See 28 U.S.C. § 2401(b) (barring a
tort claim against the United States unless it is presented
in writing to the appropriate Federal agency within two
years after such claim accrues). The court awarded the
Arroyos over $29 million in damages for various past
and future losses and expenses. The government filed a
timely appeal from this decision and requests that we
reverse the district court’s statute of limitation finding.
II. Analysis
The only part of the district court’s decision that the
government challenges on appeal is the court’s rejection
of its statute of limitations defense. The government
argues that the district court’s decision should be reversed
on two grounds: (1) the court failed to apply the proper
test for determining when the Arroyos’ FTCA claim
accrued and (2) several of the court’s factual determina-
tion were erroneous.
The parties dispute whether the district court’s statute
of limitations holding constitutes a legal or a factual
finding. The district court’s finding regarding the gov-
No. 10-2311 7
erning claim accrual rule is a legal determination and, as
such, is subject to de novo review. See Jones v. General Electric
Co., 87 F.3d 209, 211 (7th Cir. 1996), cert. denied, 519 U.S.
1008 (1996). The district court’s determination of the
date that the Arroyos knew that Christian’s injuries
could have been caused by his doctors, or the date that
a reasonably diligent person would have discovered
the same, constitutes a factual finding. We review such
findings for clear error. See Rush v. Martin Peterson Co., 83
F.3d 894, 896 (7th Cir. 1996) (reviewing a finding of
actual knowledge for clear error); Brock v. TIC Intern.
Corp., 785 F.2d 168, 171 (7th Cir. 1986) (reviewing a
“reasonable person” finding for clear error because the
date “the statute of limitations beg[ins] to run[] is a ques-
tion of fact”), superseded by statute on other grounds. We
have jurisdiction over the government’s appeal under
28 U.S.C. § 1291.
1. The FTCA’s Statute of Limitations and FTCA Claim
Accrual
Given the complexity of the issues raised in this appeal,
an extended discussion of our jurisprudence on when
FTCA claims accrue and when the FTCA’s statute of
limitations bars a plaintiff’s claims is merited.
The FTCA constitutes a limited waiver of the United
States’ sovereign immunity and allows individuals to
bring an action for damages against the federal govern-
ment for “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
8 No. 10-2311
office or employment.” 28 U.S.C. § 1346(b)(1); Warrum
v. United States, 427 F.3d 1048, 1049 (7th Cir. 2005). The
federal government’s liability under the FTCA is cabined
by the Act’s statute of limitations, which bars claims
that were not presented in writing to the appropriate
agency within two years of the date that the claim ac-
crues. 28 U.S.C. § 2401(b); Jastremski v. United States, 737
F.2d 666, 669 (7th Cir. 1984). This two year limitation
period is loosened by the Act’s savings provision,
which states that a plaintiff’s claim will be considered
timely if: (1) he filed a civil action that contained his
claim within two years of his claim’s accrual; and (2) he
presented his claim to the appropriate federal agency
within sixty days of his civil suit’s dismissal. See 28 U.S.C.
§ 2679(d)(5).
Federal law governs when a claim accrues under the
FTCA, McCall v. United States, 310 F.3d 984, 987 (7th Cir.
2002), and we, along with other circuits, have held that
a plaintiff’s claim accrues when: (A) the plaintiff dis-
covers; or (B) a reasonable person in the plaintiff’s
position would have discovered that he has been injured
by an act or omission attributable to the government. See
Goodhand v. United States, 40 F.3d 209, 214 (7th Cir. 1994);
Massey v. United States, 312 F.3d 272, 276, 279 (7th Cir.
2002); Barnhart v. United States, 884 F.2d 295, 298 (7th Cir.
1989); see also McCullough v. United States, 607 F.3d 1355,
1359 (11th Cir. 2010); Hughes v. United States, 263 F.3d 272,
275-76 (3d Cir. 2001). It is worth emphasizing that an indi-
vidual’s FTCA claim accrues only when the individual
knows (or should have known) of the “cause that is in
the government’s control, not a concurrent but independ-
No. 10-2311 9
ent cause that would not lead anyone to suspect that
the government had been responsible for the injury.”
Drazan v. United States, 762 F.2d 56, 59 (7th Cir. 1985).
Our prior decisions concerning FTCA claims have
recognized that there are often multiple causes for a
plaintiff’s injury. See, e.g., id. at 58-59; Nemmers v. United
States, 795 F.2d 628, 629-32 (7th Cir. 1986). In Drazan, we
provided the following example of how a single injury
can be viewed as the result of multiple causes:
A postal van knocks a man down, and he strikes
his head against the pavement and is killed. No
one sees the accident, and the hospital to which the
body is taken gives out the cause of death as a
fractured skull. That is one cause but the postal
service is another; and unless the decedent’s
survivors know or should have known that the
postal service caused the decedent’s head to hit the
pavement, just knowing that he died from a frac-
tured skull does not start the statute of limita-
tions running.
Drazan, 762 F.2d at 59. We have often noted that deter-
mining the causes underlying a claimant’s injury can be
a more complicated task than it initially appears, particu-
larly in the context of medical malpractice claims. Id. at 59
(stating that courts must distinguish between plaintiffs’
cognizance that they have been harmed and their recog-
nition that they may have been harmed by their doc-
tors). For instance, in Nemmers, we decided that a child’s
cerebral palsy was caused by both the mother’s unusually
difficult delivery and the actions taken by the health care
10 No. 10-2311
practitioners overseeing the delivery. Nemmers, 795 F.2d
at 629. The plaintiff’s knowledge of the former cause was
insufficient to cause the statute of limitations to start
running on her FTCA claim—accrual only occurred upon
her learning that her doctor’s actions might also
have contributed to her child’s injury. Id.
There are two final aspects of our FTCA claim accrual
jurisprudence that warrant discussion. First, it is worth
emphasizing the disjunctive nature of the claim accrual
inquiry. An FTCA claim accrues when: (A) an individual
actually knows enough to tip them off that a govern-
mental act (or omission) may have caused their injury;
or (B) a reasonable person in the individual’s position
would have known enough to prompt a deeper inquiry.
Thus, the proper way to determine when the statute of
limitations for FTCA claims begins to run is a two-part
inquiry that incorporates subjective and objective compo-
nents. Id. at 631. A plaintiff’s claim accrues the first time
the plaintiff knew, or a reasonably diligent person in
the plaintiff’s position, reacting to any suspicious cir-
cumstances of which he or she might have been aware,
would have discovered that an act or omission at-
tributable to the government could have caused his or
her injury.
Second, we have held that accrual of an individual’s
FTCA claim is not postponed until the individual obtains
complete knowledge of the cause of his injury. Rather,
accrual occurs when an individual acquires informa-
tion that would prompt a reasonable person to make “a
deeper inquiry into a potential [government-related]
No. 10-2311 11
cause” of his or her injury. Id. at 632. An individual does
not need to have reason to believe that the relevant gov-
ernmental conduct was negligent; mere knowledge of
the potential existence of a governmental cause is suf-
ficient to start the clock ticking. United States v. Kubrick,
444 U.S. 111, 122 (1979). In other words, the statute of
limitations begins to run “either when the government
cause is known or when a reasonably diligent person (in
the tort claimant’s position) reacting to any suspicious
circumstances of which he might have been aware
would have discovered the government cause—whichever
comes first.” Drazan, 762 F.2d at 59 (emphasis added).
2. The District Court Applied the Proper Claim
Accrual Test
The United States contends that the district court mis-
interpreted our FTCA claim accrual jurisprudence
when deciding whether the Act’s statute of limitations
barred the Arroyos’ claim. Specifically, the government
argues that the district court erred by predicating the
accrual of the Arroyos’ claim on the subjective knowl-
edge of the Arroyos and failing to consider whether the
Arroyos’ claim accrued at an earlier point in time under
the objective, reasonable person inquiry.
We reject the government’s argument and find that
the district court applied the proper claim accrual rule.
As discussed above, a district court deciding when an
FTCA claim accrued must conduct a two-part inquiry to
determine when the plaintiff knew about “the govern-
ment cause . . . or when a reasonably diligent person . . .
12 No. 10-2311
would have discovered the government cause.” Drazan,
762 F.2d at 59. It is clear that the district court con-
sidered whether the Arroyos had actual knowledge that
Christian’s injuries were attributable to an act or omission
of a government doctor. See 2010 WL 1437925 at *2-9
(N.D. Ill. April 2, 2010) (stating that there was “no evi-
dence that Plaintiffs had actual knowledge that there
was iatrogenic harm at the time that the hospital dis-
charged Christian”). It is similarly clear that the
district court considered the objective component of the
inquiry. Id. at *9 (“A reasonable person in the Plain-
tiffs’ position would have had no reason to suspect that
something could have prevented Christian’s injury.”).
3. The District Court’s Factual Determinations Re-
garding When the Arroyos’ Claim Accrued Were Not
Erroneous
The United States contends that, even if the district
court considered the correct limitation and accrual rules,
we should reverse the court’s judgment because its analy-
sis of when Plaintiffs’ claims accrued contained several
erroneous factual determinations. Reiterating many of
the arguments they presented to the district court, the
government argues that the Arroyos’ claim accrued in
the end of June or the beginning of July of 2003, when
they were informed by the hospital that Christian had
suffered brain injuries due to a bacterial infection that
he contracted from exposure to his mother’s blood
during birth. The government argues that the knowl-
edge that Christian had been injured by an infection
No. 10-2311 13
while in the care of the hospital was sufficient to cause
their FTCA claim to accrue. If accrual occurred during
this period, then the Arroyos’ claim would be barred by
the FTCA’s statute of limitations because their state
court suit, filed on December 5, 2005, was not filed
within two years of the date of accrual.
The district court rejected the government’s assertion
that the Arroyos’ claim accrued in mid-2003, stating
that the government had failed to produce evidence
establishing that the Arroyos had reason to believe that
Christian’s injuries were caused by his doctors or that a
reasonable person in the Arroyos’ position would have
known enough information at this time to “prompt a
deeper inquiry into a potential cause.” Rather, the
district court found that the Arroyos’ claim accrued either
on July 4, 2004 (the date that Mrs. Arroyo gave birth to
her second son and, presumably, was given antibiotics
prior to delivery), or within a few months of that date,
when the Arroyos watched a lawyer’s television com-
mercial that stated that injuries such as Christian’s are
often due to physician malpractice.1 The court found
that, even if it assumed that the Arroyos’ claim accrued
on the earlier of these two dates, their suit would have
been timely, given the FTCA’s savings provision and the
1
There is some uncertainty as to the exact date that the Ar-
royos’ viewed the lawyer’s television commercial. However, the
district court determined, and it is apparently undisputed
by both parties, that this event occurred roughly three
months after the birth of the Arroyos’ second son, sometime
in October of 2004.
14 No. 10-2311
fact that the Arroyos filed a civil suit in state court in
December of 2005.2
As discussed earlier, our precedents state that a plain-
tiff’s knowledge of the non-governmental causes of his
injury is insufficient to start the statute of limitations
running on his FTCA claim. It is only when a plaintiff
obtains sufficient knowledge of the government-
related cause of his injury that his claim accrues. See
Drazan, 762 F.2d at 59 (holding that the statute of limita-
tions does not begin to run until the plaintiff discovers
the “government link” in the causal chain); see also
Goodhand, 40 F.3d at 212; Nemmers, 795 F.2d 629. Hence,
the only issues before us are whether the district court
erred when it determined the date that: (A) the Arroyos
knew; or (B) a reasonable person in the Arroyos’ position
would have known enough to suspect, that actions
taken by Christian’s doctors contributed to his injuries.
The district court did not err in finding that the Arroyos
did not actually know that there was a doctor-related
cause until 2004. As stated earlier, the only information
that the hospital conveyed to the Arroyos was that Chris-
tian’s injuries were due to a blood infection that his
mother had transmitted to him at birth. The fact that the
Arroyos knew about the biological cause of Christian’s
injuries, however, does nothing to establish that the
2
Both parties agree that the Arroyos filed their administra-
tive claim while their state suit was pending and, hence, that
the date of the commencement of the state suit is the opera-
tive date for statute of limitation purposes.
No. 10-2311 15
Arroyos knew that there was also a malpractice-related
cause. The record is devoid of evidence establishing that
the Arroyos knew that the hospital’s doctors should
have given Christian and his mother antibiotics, that
Christian’s infection was left untreated following his
birth or that prompt treatment of his infection would
have reduced or prevented the infection’s damage. In
short, the government failed to present any evidence
establishing that, at the time of Christian’s discharge, the
Arroyos possessed knowledge that was sufficient to
cause their claim to accrue.
We also find that the district court did not err in
finding that a reasonably diligent person in the Arroyos’
position in 2003 would have lacked information suf-
ficient to prompt a deeper inquiry into whether
Christian’s doctors caused his injuries. In order to prevail
on its statute of limitations defense, the government
needed to show that a reasonable person, when
informed that his or her infant’s injuries were caused by
an infection that had been transmitted during birth,
would have searched for potential iatrogenic causes for
the injuries. The United States did not meet this burden.
First, the government failed to present any evidence
establishing that injuries caused by birth-transmitted
infections are typically caused by doctors. Second, and
even more significantly, the government neglected to
argue that iatrogenic causes are frequent enough that a
reasonably diligent person would have investigated
whether there was a doctor-related cause for Christian’s
injuries. While these omissions, on their own, provide
more than sufficient grounds for affirming the district
16 No. 10-2311
court’s decision, we also note that courts have found
that it is reasonable for individuals presented with
similar information about the etiology of birth-related
injuries to assume that the hospital’s staff did everything
they could to prevent the injury. See, e.g., Valdez ex rel.
Donely v. United States, 518 F.3d 173, 180 (2d Cir. 2008)
(“When a doctor reports that a person is ‘born with’
a problem, it could reasonably have the effect of
leading a person to believe that the injury was completely
unavoidable.”); Rice v. United States, 889 F. Supp. 1466,
1471 (N.D. Okl. 1995).
We reject the government’s invitation to find that all
reasonable persons who suffer injuries while under the
care of medical professionals assume that their injuries
can be attributed to shortcomings in the care they
received.3 This court has previously considered whether
the law requires individuals to make this assumption
and concluded that it does not, recognizing the “ghoulish
consequence[s]” that would follow from adopting such
a rule. Drazan, 762 F.2d at 59 (stating that such a rule
would cause any individual who “suffered pain or
illness . . . in a Veterans Administration hospital . . . [to]
3
We note that the accrual rule proposed by the government
has been endorsed by the Ninth Circuit in Herrera-Diaz v.
United States, 845 F.2d 1534 (9th Cir. 1988), Fernandez v. United
States, 673 F.2d 269 (9th Cir. 1982) and subsequent cases. A
number of our sister circuits have joined us in rejecting this
interpretation of Kubrick. See, e.g., Hertz v. United States, 560
F.3d 616, 619 (6th Cir. 2009); Valdez v. United States, 518 F.3d
173, 180 (2d Cir. 2008); Green v. United States, 180 Fed. App’x 310
(3d Cir. 2003).
No. 10-2311 17
request his hospital records to see whether diagnosis
or treatment might have played a role in his distress,”
even if such an individual lacked any reason to think a
doctor’s actions contributed to his injuries); see also
Nemmers, 795 F.2d at 631-32 (“[T]he statute of limita-
tions should not be construed to compel everyone
who knows of an injury to scour his medical records just
in case the government’s physician did something
wrong.”). As discussed above, our previous decisions
establish that injuries can have multiple causes and that
a plaintiff’s claim only accrues when he obtains
sufficient knowledge of the government-related cause
of his injury.
The government has not presented us with reasons to
abandon our prior holdings—its arguments resemble
those we rejected in our earlier cases and it has not pre-
sented us with evidence discrediting our assumptions
about what reasonable people assume when injured
while in the care of doctor. Hence, we stand by our deci-
sions in Drazan and Nemmers. A rule that forces patients
to scour their records whenever they receive med-
ical treatment and to initiate preemptive litigation is
inequitable, inefficient and—most importantly—contrary
to the commonsensical intuitions that “reasonable
man” tests are supposed to embody.4
4
The United States contends that rejecting its proposed rule
will necessarily undermine the FTCA’s statute of limitations
and open the door to decades-old claims being filed against
(continued...)
18 No. 10-2311
In its appeal, the government erroneously contends that
the district court held that the Arroyos’ claim did not
accrue until they had enough information to suspect
that the negligence of medical practitioners caused Chris-
tian’s injuries. They further claim that the district court’s
holding renders the statute of limitations meaningless
for claims such as the Arroyos’, as it would mean
that plaintiffs’ claims would never accrue unless they
knew that their injuries resulted from a negligent act. If
the district court had analyzed the claim accrual issue
in this manner, the government’s arguments would, of
course, be correct. However, as discussed above, we do
not believe that the government’s reading of the district
court’s opinion is plausible.
In closing, we take a moment to clarify an issue that
many have seemed to find confusing—the distinction
between (1) injuries that have a doctor-related cause
(...continued)
the government. We reject this argument for several reasons.
First, in the vast majority of situations, individuals who suffer
an injury that is caused by the government—e.g., a broken
leg due to being hit by a postal service vehicle—will immedi-
ately know of (or have reason to suspect) the governmental
cause. Second, because of the claim accrual test’s objective
component, the government can establish that the statute
of limitations started to run on a claim by showing that a
reasonable person would have discovered the governmental
cause at an earlier date, a showing that will typically become
increasingly easy to make as more and more time passes
from the time of injury.
No. 10-2311 19
and (2) injuries that are caused by a doctor’s negligence.
It is always the case that an injury that is caused by a
doctor’s negligence will have a doctor-related cause. The
converse, however, is not true. There are many situa-
tions in which an individual’s injury has a doctor-
related cause, but is not the result of a doctor’s negli-
gence. 5 When determining the accrual date of a plain-
tiff’s FTCA malpractice claim, courts must decide when
the plaintiff knew enough (or should have known
enough) to suspect that their injury had a doctor-related
cause. United States v. Kubrick, 444 U.S. 111, 123 (1979);
Drazan, 762 F.2d at 59. But, accrual does not wait until the
plaintiff learns that their injury was caused by a doctor’s
negligence. Kubrick, 444 U.S. at 123.
III. Conclusion
For the reasons stated above, the ruling of the district
court is A FFIRMED.
5
Consider the following example: A patient with a congenital
heart defect undergoes open heart surgery. Despite the fact
that the surgeon performing the operation does a superb job,
abiding by all relevant standards of care, the patient suffers
a stroke during the surgery. In such a situation, the patient’s
neurological injuries would have a doctor-related cause, but
would not have been the result of negligence.
20 No. 10-2311
P OSNER, Circuit Judge, concurring in the court’s judg-
ment and opinion. I join the court’s opinion without
reservations, and write separately only to raise two
general questions about limitations periods in medical
malpractice litigation (specifically litigation under the
Federal Tort Claims Act) that while presented by this
case do not have to be answered in order to decide
it. Both relate to the discovery rule: the rule that fed-
eral statutes of limitations don’t begin to run until the
prospective plaintiff discovers, or should have dis-
covered, that he has been injured—and by whom. (See,
with specific reference to medical malpractice suits
under the tort claims act, United States v. Kubrick, 444
U.S. 111 (1979).) 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
by whom it was inflicted. The second question is the
relation of an ethical duty of candor by medical staff to
the “should have” question.
As a practical matter what used to be called the “reason-
able man” concept in tort law, now unsexed to conform
to modern sensibilities, means the average person; this
is in recognition of the fact that “when men live
in society, a certain average of conduct, a sacrifice of
individual peculiarities going beyond a certain point,
is necessary to the general welfare . . . . The law con-
siders, in other words, what would be blameworthy in
the average man, the man of ordinary intelligence and
prudence, and determines liability by that.” O.W. Holmes,
Jr., The Common Law 108 (1881); cf. United States v. Slaight,
620 F.3d 816, 821 (7th Cir. 2010); Boim v. Holy Land Founda-
No. 10-2311 21
tion for Relief & Development, 549 F.3d 685, 693 (7th Cir.
2008) (en banc); United States v. Notorianni, 729 F.2d 520,
522 (7th Cir. 1984). So negligence is failure to take the
care that the average person would have taken in the
defendant’s position, and contributory or comparative
negligence is failure to take the care that the average
person in the plaintiff’s position would have taken.
Prosser and Keeton call the reasonable person “a ficti-
tious person, who never has existed on land or sea:
the ‘reasonable man of ordinary prudence’ [is] . . . an
ideal individual.” W. Page Keeton et al., Prosser & Keeton
on the Law of Torts § 32, p. 174 (5th ed. 1984). But the
key word is “ordinary”: the required level of care has to
be within the average person’s ability to attain. Moreover,
exceptions are allowed: a blind person is not held to the
level of care of a sighted one. Fletcher v. City of Aberdeen, 338
P.2d 743, 745-46 (Wash. 1959); Davis v. Feinstein, 88 A.2d
695 (Pa. 1952); Richard A. Epstein, Torts § 5.10, p. 121
(1999); Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 11(a) (2005); Holmes, supra, at 109.
A blind person who, while using the blind person’s
white cane, is hit at an intersection, when a sighted
person would easily have dodged the vehicle hurtling
toward him driven by the defendant, is not deemed
negligent if he was being as careful as it is reasonable
to expect a blind person to be, bearing in mind the cost
to the blind of holding them to the same standard of care
in crossing streets as sighted persons. Otherwise a blind
person would lose the protection of tort law when he
ventured to cross a street.
22 No. 10-2311
The goal of the average-person rule (to give it the
more perspicuous name), in instrumental terms, is to
provide an additional incentive, beyond that of moral
duty or concern with personal safety, to avoid injuring
people (or being injured). A driver who falls below the
average of care, and as a result injures someone, is
subject to tort liability; it is hoped that the threat will
motivate drivers to be careful to avoid injuring others (or
themselves). Epstein, supra, § 5.2. Similarly, a pedestrian
who falls below the average of care, and would not have
been injured had he not done so, cannot obtain damages
(full damages, and in some states—see, e.g., Robinson v.
McNeil Consumer Healthcare, 615 F.3d 861, 865 (7th Cir.
2010) (Virginia law)—any damages) even if his injurer
also failed to exercise the care of an average person.
But this motivational system works only if potential
injurers and potential victims are capable of exercising
the care of the average person, or if incapable can at least
avoid situations in which they are likely to cause or suffer
injury. Drivers have to be licensed, and this excludes, in
principle anyway, the least competent persons. And
persons licensed to drive but nonetheless unskilled can
avoid accidents by driving slowly or avoiding night
driving and dangerous roads, or by not driving at all.
Similarly, financially unsophisticated persons don’t have
to buy financial instruments, so all buyers of such in-
struments can properly be held to the standard of
care of the average buyer. Moreover, if the law held
unsophisticated buyers to only a lower standard, it
would in effect be subsidizing them and thus en-
couraging the entry of financially unsophisticated
persons into those markets.
No. 10-2311 23
“Care” thus connotes both the level of performance
that the law requires and the set of compensatory
measures that persons who are clumsy or inexperienced
can use to attain a level of care that the average
person attains with less effort. But a blind person, no
matter how careful he tries to be, cannot cross a street as
safely as a sighted person unless he can afford to hire
an escort. Holding him to the standard of care of a
sighted person would just discourage him from going
out of his house, and this is thought an excessive cost
(in contrast to forbidding blind people to drive); it “could
lead to levels of social isolation that are no longer
found acceptable.” Epstein, supra, § 5.2, at 113.
True, there isn’t an exception to the average-person
standard for all types of person incapable of taking the
care of the average person. There is not, for example, for
the insane (beyond a narrow exception for a sudden,
unforewarned insane fit, see Breunig v. American Family
Ins. Co., 173 N.W.2d 619, 624 (Wis. 1970)). The hope is
that the family, or the authorities, will keep persons
known to be insane out of mischief, Restatement (Third) of
Torts, supra, § 11(c); and the incentive to do so will be
somewhat greater if the insane person is held to the
standard of the average person. Then too mental illness
is more difficult to diagnose than blindness and its
relation to the commission of a negligent act more
difficult to determine.
There is no way in which holding the Arroyos, who
seem to be typical clients of the Erie Family Health
Center, to the level of medical knowledge of the average
24 No. 10-2311
person in American society could make them as knowl-
edgeable as such a person. That would be almost 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 discovered that he had been injured as a result of
a medical act or omission, though the actual plaintiff
had no medical training. Which is not to say that con-
tributory (or comparative) negligence has no role to
play in medical malpractice cases. Drugs come with
warnings; due care requires reading the warnings, pro-
vided they are intelligible to the average person. See, e.g.,
Robinson v. McNeil Consumer Healthcare, supra. Everyone
knows one should read warning labels, though, like the
plaintiff in the Robinson case, many do not.
In applying the discovery rule, which governs when
a federal claim accrues in the sense of starting the
running of the period allowed by the statute of limita-
tions for bringing suit, courts generally use the same
average-person standard they use in determining negli-
gence and contributory negligence. Compare In re
Signal Int’l, LLC, 579 F.3d 478, 491-92 (5th Cir. 2009)
(negligence), with Nemmers v. United States, 795 F.2d 628,
631 (7th Cir. 1986) (discovery in malpractice suit under
Federal Tort Claims Act); Valdez ex rel. Donely v. United
States, 518 F.3d 173, 177-78 (2d Cir. 2008) (same), and
Callahan v. United States, 426 F.3d 444, 451 (1st Cir. 2005)
(same); cf. Fries v. Chicago & Northwestern Transportation
Co., 909 F.2d 1092, 1095 (7th Cir. 1990) (discovery in other
federal suits); Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009)
(same). And typically they state the standard without
No. 10-2311 25
qualification. But such statements should be treated as
generalities open to exception, in conformity with
Holmes’s overstated but illuminating observation that
“general propositions do not decide concrete cases. The
decision will depend on a judgment or intuition more
subtle than any articulate major premise.” Lochner v. New
York, 198 U.S. 45, 76 (1905) (dissenting opinion). Judicial
opinions would be unreadable if every proposition of
law stated in them was embellished with every con-
ceivable qualification necessary to make the proposi-
tion exactly and everywhere a true statement of the
law. When judges recite the average-person rule of tort
law, they do not bother to list its exceptions, such as
the exceptions for blind people, other than ones that
might be applicable to the case at hand. To omit to
mention a qualification is not to reject it.
When knowing a fact depends on having technical
knowledge, the incredible variance in such knowledge
across American society can make the knowledge of the
average person a perverse benchmark. Mrs. Arroyo had
an infection (Group B Streptococcus), benign to her,
when she entered the hospital to give birth. The
birth seemed uneventful, but it was soon discovered
that the infection had been communicated to her new-
born during childbirth, causing the terrible injuries de-
scribed in the court’s opinion. Had she been a doctor, she
would have suspected that the communication of her
infection to the child during childbirth might have
been preventable, and this suspicion in turn would
have impelled her to investigate whether the failure of
prevention had reflected a lack of due care and borne
26 No. 10-2311
a causal relation to the child’s injuries. See Centers for
Disease Control and Prevention, “Prevention of Perinatal
Group B Streptococcal Disease,” Morbidity and Mortality
Weekly Report, Nov. 19, 2010, www.cdc.gov/mmwr/pdf/
rr/rr5910.pdf. (visited July 26, 2011, as are the other web
citations in this opinion). And similarly if her husband
had been a doctor.
The Arroyos’ baby was delivered at Northwestern
Memorial Hospital by an obstetrician employed by the Erie
Family Health Center in Chicago, and the baby’s initial
care was by a pediatrician also employed by the Center.
The mother was a patient at Erie’s West Town Health
Center, which is located in a neighborhood that is 47
percent Hispanic. Erie’s website explains that its goal
is “to deliver quality health care to Chicago’s med-
ically underserved communities with compassion
and respect.” Erie Family Health Center, “About Erie,”
www.eriefamilyhealth.org/about-erie. Eighty-four per-
cent of the Center’s patients are Hispanic, 62 percent “are
best served in Spanish,” 34 percent are uninsured, and
86 percent “come from households with incomes
that fall below the Federal Poverty Line.” The Arroyos are
Hispanic (Mrs. Arroyo does not speak English) and poor
(her medical bills were paid for by “Public Aid”).
Mr. Arroyo is a manual worker. Neither is college-edu-
cated.
As persons of limited education living we may
assume at or near the poverty line, the Arroyos probably
are deferential to medical staff. Told by the staff only
that their child’s injuries were the result of the
No. 10-2311 27
mother’s infection, they could not have been expected
to suspect that another cause was that the staff
hadn’t administered antibiotics to her, and to conduct
research into the risk and prevention of the transmission
of a deadly infection from mother to child during child-
birth. Suppose that, contrary to the court’s opinion, a
person of average medical sophistication would have
conducted an investigation that would have enabled
suit to be filed before the statute of limitations expired.
That should not defeat the Arroyos’ claim. When the
question in applying the discovery rule in a mal-
practice case is what knowledge should be ascribed to
the plaintiff, the court should either determine the knowl-
edge of the particular plaintiff or make a judgment ap-
plicable to the subset of the population that has approxi-
mately the same educational background and socioeco-
nomic status as the plaintiff.
Granted, this approach would require, though only in
cases in which the statute of limitations was pleaded as
a defense, that plaintiffs present evidence about their
educational background and socioeconomic status, in
lieu of a guess by judge or jury, based on no evidence, of
the medical sophistication of the average American. See,
e.g., Grand Trunk Ry. v. Ives, 144 U.S. 408, 417 (1892);
Leon Green, “The Negligence Issue,” 37 Yale L.J. 1029
(1928). But why is that an objection rather than a confes-
sion that there is too much guesswork in American law
and a clue that the traditional approach can produce
absurd results when applied in a technical field—as in
this case? For the government in its brief tells us—with-
out references or other elaboration—that “from an objec-
28 No. 10-2311
tive standpoint, reasonably diligent persons are aware
that infections can be prevented, particularly in
hospital settings.” On the contrary, knowledgeable per-
sons, fearful of hospital-based infections—see R. Monina
Klevens et al., “Estimating Health Care-Associated In-
fections and Deaths in U.S. Hospitals, 2002,” 122 Pub.
Health Rep. 160 (2007), www.ncbi.nlm.nih.gov/pmc/
articles/PMC1820440; Andrew Pollack, “Rising Threat of
Infections Unfazed by Antibiotics,” N.Y. Times, Feb. 27,
2010, p. B1—strive to minimize the amount of time they
spend in a hospital because they know, unlike the
authors of the government’s brief (if they believe what
they wrote), that many infections in hospital settings
cannot be prevented even with reasonable care. If “dili-
gent” is a synonym for expert, as the government’s
brief implies, the government is not a diligent student
of hospital infection. How can it demand that the
Arroyos have a level of medical expertise that the De-
partment of Justice appears to lack?
I need to make clear that I am discussing only the
standard for determining when the statute of limitations
begins to run, not the standard of care. Kubrick holds
that the statute of limitations begins to run in a mal-
practice case when the plaintiff either discovers, or if
diligent would have discovered, that he has been
injured by the (at that point merely potential) defendant,
and not when the plaintiff discovers or should
have discovered that his injury was the result of negli-
gence. This is not only the law; it is sensible. Even unso-
phisticated people, when they learn that they have been
injured by a physician rather than (just) by the condi-
No. 10-2311 29
tion the physician was (or should have been) treating,
should know that there may have been malpractice, and
so should consult another physician, or other medical
person, or a lawyer. Kubrick knew his injury might
have been caused by a drug administered by the
hospital; the question what level of sophistication
should be assumed in deciding whether a patient
should know that he has been injured by medical
personnel was not before the Court. Weeks after being
discharged from a Veterans Administration hospital
in which he had been treated with an antibiotic
called neomycin, Kubrick had “noticed a ringing sensa-
tion in his ears and some loss of hearing. An ear
specialist . . . diagnosed the condition as bilateral nerve
deafness. His diagnosis was confirmed by other special-
ists. One of them . . . secured Kubrick’s VA hospital records
and in January 1969, informed Kubrick that it was highly
possible that the hearing loss was the result of the neomycin
treatment administered at the hospital.” 444 U.S. at 113-14
(emphasis added). So, the Court held, that was when the
statute of limitations began to run.
Had someone informed the Arroyos that it was
“highly possible” that the injuries to their child had
been caused by the failure to administer antibiotics to
Mrs. Arroyo, the statute of limitations would have
begun to run then, just as in Kubrick. For they would
have known, or in the exercise of reasonable diligence
(reasonably understood in light of their socioeconomic
position) should have known, that a cause of their
child’s injuries might have been the failure of the doctors
to administer antibiotics to Mrs. Arroyo; given that infor-
30 No. 10-2311
mation, they would or should have known enough to
consult a lawyer or other expert. That may be asking a
lot of them; but to ask that they have suspected mal-
practice in the absence of any disclosure of the possi-
bility of an iatrogenic injury would be to ask too much.
I anticipate the objection that the suggested approach
would nullify the statute of limitations in many medical
malpractice cases. The Arroyos missed the two-year
statutory deadline by seven months; they might have
missed it by a greater margin but for the happenstance
of seeing a tort lawyer’s television commercial. The
obvious answer would be to add a statute of repose to the
Federal Tort Claims Act, as suggested in Kent Sinclair &
Charles A. Szypszak, “Limitations of Action under the
FTCA: A Synthesis and Proposal,” 28 Harv. J. Legis. 1, 59-60
(1991), and, in a slightly different context, by Justice
Stevens in Kubrick, 444 U.S. at 129 n. 5 (dissenting opinion).
He was arguing that the statute of limitations should
not begin to run until the plaintiff knew or should have
known not only that he had been injured, but also that
his injury was caused by the defendant’s negligence—the
argument the majority rejected. Statutes of repose are
a common feature of medical malpractice law. See Branch
v. Willis-Knighton Medical Center, 636 So. 2d 211 (La. 1994).
But if the Erie Family Health Center (or its backer, the
United States) wants to avoid being hit by stale mal-
practice suits, it has only to level with patients (or in the
case of a child, the patient’s parents) concerning
possible causes of a medical injury. When the Arroyos’
child was discharged from the hospital with brain
No. 10-2311 31
injuries two months after his birth, the Center’s
physicians told the parents only that their child’s
injuries had been caused by an infection that Mrs. Arroyo
had transmitted to him during his birth. They said
nothing that might have alerted the Arroyos to the possi-
bility that a medical act or omission had contributed to
the infection. The physicians did not have to confess
liability; indeed, at the trial the defense presented respect-
able evidence that there had been no negligence. All the
Center would have had to do was give the Arroyos
a reasonably full account of the circumstances of
the child’s injuries—that antibiotics could have been
administered to the mother before the birth and to the
child immediately after and that had this been done
the injuries might have been averted, or been less serious.
See Nemmers v. United States, supra, 795 F.2d at 631.
“According to recent codes and guidelines . . . individual
clinicians and institutions have an ethical responsibility
to disclose unanticipated negative outcomes. Respect
for personal autonomy entails disclosure of what oc-
curred—even if no further medical decisions are in-
volved—and of options to take nonmedical actions,
including legal actions, if appropriate.” Tom L. Beauchamp
& James F. Childress, Principles of Biomedical Ethics 294
(2009); see also American Medical Association, Code
of Medical Ethics: Current Opinions with Annotations
§ 8.12, pp. 141-42 (1998). If a patient dies as a result of his
physician’s failure to diagnose a readily diagnosable,
and if diagnosed readily curable, condition, such as ap-
pendicitis, it is a deceptive half-truth to tell the grieving
spouse or parents that the patient died of appendicitis;
32 No. 10-2311
the patient’s death was jointly caused by appendicitis
and medical negligence. Compliance with the ethical
duty of disclosure of possible medical errors in simple,
intelligible terms would give medically unsophisticated
plaintiffs enough information to recognize that medical
decisions might have contributed to their injuries.
I am not arguing that a breach of the ethical duty of
disclosure is itself malpractice, although it could be if
it prevented the patient from obtaining medical treat-
ment that would mitigate the consequences of the
original medical error. I am not arguing that the disclosure
must go beyond an acknowledgment of the possibility
of medical error and become a confession that there was
a medical error; or that a doctor is required to explain
that additional treatment might have avoided 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
had the doctor performed a battery of painful and ex-
pensive experimental tests. But if a potential defendant
in a medical malpractice suit wants to take advantage
of the statute of limitations he should have to disclose
information known to him that would alert the patient
to the possibility of an error. By doing that he can be
sure that the statute of limitations will begin to run im-
mediately (for that is what Kubrick holds) 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 socioeconomic
stratum would have realized that his injury might have
No. 10-2311 33
been caused by medical staff rather than by (or just by)
an illness.
I want finally to distinguish this case from one in
which concealment is pleaded to rebut a defense that the
statute of limitations has expired. The doctrine of “fraudu-
lent concealment,” a form of equitable estoppel, tolls
the statute of limitations during a period in which the
defendant has taken steps to prevent the plaintiff
from filing his complaint until the statute of limitations
expires; he might for example have promised not to
plead the statute of limitations while the parties were
negotiating a possible settlement. Wolin v. Smith Barney
Inc., 83 F.3d 847, 850 (7th Cir. 1996); Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990). “Fraudu-
lent concealment in the law of limitations presupposes
that the plaintiff has discovered, or, as required by the
discovery rule, should have discovered, that the
defendant injured him, and denotes efforts by the de-
fendant—above and beyond the wrongdoing upon
which the plaintiff’s claim is founded—to prevent the
plaintiff from suing in time.” Id.; see also Harrison v. United
States, 708 F.2d 1023, 1027-28 and n. 1 (5th Cir. 1983).
The Supreme Court has not decided whether the
statute of limitations in suits under the Federal Tort
Claims Act is jurisdictional and therefore (by analogy
to such cases as Bowles v. Russell, 551 U.S. 205 (2007)) may
not be tolled. Our court has not addressed the question
either, and the courts of appeals that have done so are
divided. Compare Marley v. United States, 567 F.3d 1030,
1034-37 (9th Cir. 2009), with Santos ex rel. Beato v. United
34 No. 10-2311
States, 559 F.3d 189, 194-97 (3d Cir. 2009), and T.L. ex rel.
Ingram v. United States, 443 F.3d 956, 959-61 (8th Cir. 2006).
There is no need to answer the question in this case,
though I note the Supreme Court’s recent remark that
filing deadlines, even in suits against the government,
are presumptively not jurisdictional. Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011). The
concealment in this case occurred before rather than
after the statute of limitations began to run, because the
concealment of the fact that the doctors had contributed
to the child’s injuries prevented the Arroyos from dis-
covering the doctors’ causal role. The statute of limita-
tions does not begin to run until that discovery is made
or should have been made by a reasonable person of the
plaintiffs’ educational and socioeconomic background.
This is not a tolling case, so limitations on tolling are
irrelevant.
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