[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22, 2009
THOMAS K. KAHN
No. 09-10383 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-00496-CV-ORL-18DAB
SOPHIA T. CHASTEEN,
Individually, and as Personal
Representative of the Estate of Mandy
Lee Lizzi, deceased,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 22, 2009)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Sophia Chasteen, individually and as the representative of the estate of
Mandy Lee Lizzi, brought this wrongful death action against the United States,
alleging Lizzi’s death resulted from mistreatment of her diabetes. Chasteen
appeals the dismissal of her complaint as time-barred. We agree that this cause of
action accrued more than two years before a claim was filed with the appropriate
U.S. agency and affirm.
BACKGROUND
According to the complaint, Lizzi was treated for her diabetes by Dr.
Michael Ham-Ying at Community Health Centers, Inc., a federally-supported
health center. Dr. Ham-Ying treated Lizzi from November 2002 until her last
appointment on April 15, 2004. The General Statement of Plaintiff’s Case in the
Joint Pretrial Statement stated that Lizzi suffered repeated episodes of
hypoglycemia while under the care of Dr. Ham-Ying. Lizzi died on May 23, 2004
at age 37. Dr. Ham-Ying wrote on the death certificate that the cause of death was
an “Acute Myocardial Infarction due to Diabetes Mellitus Type II.”
The Concise Statement of Facts Which Are Admitted in the Joint Pretrial
Statement states that on the day after Lizzi’s death, May 24, 2004, Lizzi’s husband
completed an autopsy authorization form on which he wrote, “I strongly believe
my wife was taking the wrong medication or the wrong dosage, resulting in her
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death. She was only 37 years old.” The autopsy form also requested that the
results be sent to Mr. Lizzi’s lawyer. Additionally, on either May 23 or May 24,
Mr. Lizzi told his mother, Sophia Chasteen, the appellant herein, that “That doctor
killed my wife” meaning Dr. Ham-Ying. On July 20, 2004, Mr. Lizzi’s lawyer
requested Lizzi’s medical records from Dr. Ham-Ying.
The autopsy report was completed on August 15, 2004. The report stated
that the cause of death was “acute cerebral edema with probable hypoglycemic
reaction complicating diabetes mellitus.”
Pursuant to Florida law, Mr. Lizzi and his lawyer filed a petition for an
automatic 90-day extension of the statute of limitations for medical malpractice
actions with the Orange Count Circuit Court, Florida on February 2, 2006.1
On June 27, 2006, Mr. Lizzi sent a Notice of Intent to Initiate Litigation to
Dr. Ham-Ying and Community Health Centers. This notice is required to initiate
litigation of malpractice claims under Florida law. FLA. STAT. § 766.106(2)(a).
Dr. Ham-Ying’s office acknowledged receipt on July 7, 2006, and requested a 45-
day extension to respond. On August 10, the U.S. Department of Health and
1
The document is dated January 30, 2006 and the file stamp, although difficult to read,
appears to state that the petition was filed February 1. Appellant’s brief to this court states that
the petition was filed February 2. As the difference between February 1 and February 2 is not
important for this appeal, we use the February 2, 2006 date.
3
Human Services (“HHS”) sent Mr. Lizzi instructions on how to file a claim against
the United States under the Federal Tort Claims Act (the “FTCA”). On August 21,
2006, HHS received the Administrative Claim for Damage, Injury or Death
submitted by Appellant.2 HHS denied the claim as untimely on January 16, 2007.
On March 23, 2007, Appellant filed the present lawsuit against the United
States. The complaint alleged that Dr. Ham-Ying failed to appropriately diagnose
and treat Lizzi’s diabetes, thereby breaching his duty of care to Lizzi, directly and
proximately causing her death. The complaint also named Community Health
Centers as a defendant, alleging that its staff failed to appropriately treat and
evaluate Lizzi’s condition leading to her ultimate death.
The government filed a motion to dismiss, arguing that this claim was time-
barred because HHS was not notified within two years of the date of death. The
district court agreed and, because filing a claim with the appropriate U.S. agency
within the statute of limitations is jurisdictional, granted the motion to dismiss.
STANDARD OF REVIEW
We review de novo a dismissal for lack of subject matter jurisdiction.
Broward Gardens Tenants Ass’n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002).
2
Lizzi’s husband died on August 29, 2006 of injuries sustained years earlier. Sophia
Chasteen, the Appellant and Mr. Lizzi’s mother, is now the guardian of the Lizzis’ children and
the representative of Lizzi’s estate.
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DISCUSSION
Accrual of Claim
A tort claim brought against the United States “is barred unless it is
presented in writing to the appropriate federal agency ‘within two years after such
claim accrues.’” United States v. Kubrick, 444 U.S. 111, 113 (1979) (quoting the
FTCA, 28 U.S.C. § 2401(b)). The failure to timely present an administrative
grievance to the appropriate federal agency within two years is a jurisdictional bar
to litigation in federal court. Dalrymple v. United States, 460 F.3d 1318, 1325-26
(11th Cir. 2006).
The question in this case is when this two-year statute of limitations began
to run, in other words when the claim “accrued.” Generally, the FTCA statute of
limitations period begins to run when the plaintiff is injured. United States v.
Kubrick, 444 U.S. 111, 120 (1979). In medical malpractice cases, however, where
the plaintiff might not connect the injury to a cause until some later time, the claim
accrues when the plaintiff discovers “both his injury and its cause.” Id.; Price v.
United States, 775 F.2d 1491, 1493 (11th Cir. 1985) (“Thus, a medical malpractice
claim under the FTCA accrues when the plaintiff is, or in the exercise of
reasonable diligence should be, aware of both her injury and its connection with
some act of the defendant.”). This principle has been extended to wrongful death
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claims under the FTCA, and such a claim accrues “when the plaintiff knows, or
exercising reasonable diligence should know, both of the decedent’s death and its
causal connection with the government.” Diaz v. United States, 165 F.3d 1337,
1340 (11th Cir. 1999).
Here, Appellant argues that the causal connection between Lizzi’s death and
the acts of Dr. Ham-Ying was not known until the autopsy was completed on
August 15, 2004. The government argues that the claim accrued on the date of
Lizzi’s death because it was clear that Lizzi’s husband was on reasonable notice of
a link to Dr. Ham-Ying at that time. Although this is a close case, we agree with
the government.
This court has declared that a claim accrues when the plaintiff knows that
the injury is connected to “some act of those who treated her,” but the plaintiff
need not know at that time “the particular acts that resulted in her injury.” Price,
775 F.2d at 1493-94. The Supreme Court has held that a medical malpractice
claim under the FTCA accrues at the time the plaintiff is aware of the injury and
learns of the probable cause of the injury. Kubrick, 444 U.S. at 118, 122.
Additionally, the plaintiff need not be aware that the connection indicates some
kind of negligence; rather, he or she must simply be aware of the existence of a
connection. Id. at 123 (“We thus cannot hold that Congress intended that ‘accrual’
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of a claim must await awareness by the plaintiff that his injury was negligently
inflicted. A plaintiff . . . armed with the facts about the harm done to him, can
protect himself by seeking advice in the medical and legal community.”); Diaz,
165 F.3d at 1340 (“The notice must be not of harm but of iatrogenic [doctor-
caused] harm, though as Kubrick holds, not necessarily of negligent iatrogenic
harm.”) (quoting Drazan v. United States, 762 F.2d 56, 59 (7th Cir. 1985)). The
two-year statute of limitations allows the plaintiff to investigate, confer with other
medical professionals to assess whether there has been negligence, and decide
whether to sue. Kubrick, 444 U.S. at 124; Price 775 F.2d at 1494. This period is
not simply for the plaintiff to decide whether to sue after having collected all
relevant evidence.
Here, Appellant and her predecessor as the estate representative, Mr. Lizzi,
suspected that Lizzi’s death was caused by Dr. Ham-Ying’s mistreatment of her
diabetes and the resulting hypoglycemia long before the issuance of the autopsy
report. Lizzi had a history of hypoglycemic episodes while being treated by Dr.
Ham-Ying. Also, Mr. Lizzi stated to his mother that “That doctor killed my wife.”
In fact, it was this belief that Dr. Ham-Ying had caused Lizzi’s death that led Mr.
Lizzi to request the autopsy report; he wrote on the autopsy form, “I strongly
believe my wife was taking the wrong medication or the wrong dosage, resulting
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in her death.” This evidence demonstrates that the Appellant and her predecessor
were aware of the injury and the potential causal connection with her treatment by
Dr. Ham-Ying and Community Health Centers. The autopsy in this case did not
serve to inform Appellant of the causal connection, but rather confirmed what they
already believed – that Lizzi’s death may have resulted from Dr. Ham-Ying’s
failure to control over her diabetes.3 The autopsy was not a critical disclosure of
an unknown link; rather it was merely a piece of evidence to support Appellant’s
general allegations that Lizzi’s ongoing treatment in the years before her death
was improper and contributed to her death. In such circumstances, we must
conclude that the autopsy did not announce the causal link between the injury and
the actions of Dr. Ham-Ying but rather confirmed it.
This case is very different from Kubrick wherein the plaintiff experienced a
loss of hearing as the result of treatment of a surgical wound on his leg. 444 U.S.
at 113-14. The plaintiff had no idea that the treatment could in any way be
connected to hearing loss until a specialist informed him of the possibility. Id. at
114. In Kubrick, the claim did not accrue until the plaintiff was aware of a
3
We recognize that in other cases, the claim may very well accrue on the date of the
release of the autopsy report rather than the date of death. This, however, is not a case where an
autopsy revealed some unknown and unsuspected iatrogenic cause of injury or where a surviving
spouse merely suspected that something was amiss and requested an autopsy which disclosed a
link between the doctor’s actions and the death.
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possible connection between the hearing loss and the medical treatment he
received years earlier for leg surgery. Id. at 122-23. Also, in Diaz, the plaintiff’s
husband committed suicide while incarcerated. 165 F.3d at 1338. Prior to the
suicide, medical and psychology service staff members at the hospital had
evaluated Diaz and learned that he was suffering from depression and having
suicidal thoughts and yet had not counseled Diaz or initiated a suicide watch. Id.
His wife however, had no idea that he was having such thoughts or that prison
officials were aware of the situation. Id. Thus, her claim did not accrue until she
was put on notice or would have known through reasonable diligence that the
government’s inactions may have contributed to her husband’s death. Id. at 1340.
Here, Appellant and Mr. Lizzi were aware that Lizzi was being treated by
Dr. Ham-Ying and that her diabetes was poorly controlled under his care. Mr.
Lizzi immediately made a connection between Dr. Ham-Ying’s treatment and
Lizzi’s death. Thus, Appellant cannot say that there was no notice of a connection
between the death and some act of the defendant until the autopsy report issued.
We, therefore, agree with the district court that this wrongful death claim accrued
on the date of Lizzi’s death, rather than when the autopsy report was issued.
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Equitable Tolling
Appellant argues that if the claim accrued before the release of the autopsy
report, the statute of limitations should be tolled from the submission of the Notice
of Intent to Initiate Litigation to Dr. Ham-Ying’s office on June 7, 2006.4
Appellant contends that the delay between that date and the presentation of the
claim to HHS was due to the lack of awareness that the Community Health
Centers was federally-funded and that the U.S. government was the proper
defendant. This argument, however, does not help Appellant because, as stated
above, the statute of limitations period had already ended on May 23, 2006, two
years from the date of Lizzi’s death. Regardless of whether the Notice of Intent
sent to Dr. Ham-Ying would toll the limitations period from June 7, 2006 until
HHS received the administrative claim on August 21, 2006, the statute of
limitations period already ended before the Notice of Intent was sent.5
CONCLUSION
For the foregoing reasons, we AFFIRM the dismissal for lack of
jurisdiction.
4
Appellant does not argue that the statute of limitations should be tolled from the date
that she filed the state petition for a 90-day extension of the statute of limitations with the Florida
state court on February 2, 2006. We, therefore, do not address that as a possibility.
5
Because the statute of limitations period had already run before the asserted equitable
tolling would have begun if applicable, we need not address whether the FTCA allows tolling.
10