U.S. Court of Appeals Affirms Dismissal of Late Filed Brain Damage Medical Malpractice Case of Misdiagnosis

This appeal is from the district court’s dismissal, on statute of limitations grounds, of a medical malpractice lawsuit. The plaintiff, Johnnie Watkins, filed the action on behalf of her adult daughter, Johnnice Ford, who is a disabled person. The lawsuit alleged that Ford sought treatment at the emergency room of Ingalls Memorial Hospital in Chicago where she was treated by a doctor who was an employee of Family Christian Health Center. This facility was operated pursuant to grant money from the Public Health Services, an agency of the U.S. government. The lawsuit was brought under the Federal Tort Claims Act (FTCA), and the United States is the defendant.

In the lawsuit, it was asserted that the treating physician chose not to correctly diagnose and treat Ford who was eventually correctly diagnosed with Wernicke’s encephalopathy and who sustained neurological injuries, including permanent disability. Encephalopathy is a general term that describes a disease that damages the brain. Wernicke’s encephalopathy is a neurodegenerative disorder caused by a severe vitamin B1 deficiency. Parts of the brain may be damaged as a result of this deficiency causing increased difficulty with memory, movement, vision and coordination.

The federal district court judge dismissed the lawsuit that was filed beyond the relevant statute of limitations. Watkins appealed that dismissal order to the U.S. Court of Appeals.

As the district court recognized, the FTCA constitutes a limited waiver of the U.S.’s sovereign immunity, which allows individuals to pursue actions against the federal government 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 office or employment.” 28 U.S.C. ¶ 2675(a); Warram v. U.S., 427 F.3d 1048, 1049 (7th Cir. 2005).

The applicable FTCA statute of limitations bars any claim not presented in writing to the appropriate agency within two years of the claim’s accrual. Under the savings clause, that time period can be extended if the plaintiff filed a civil suit concerning the underlying tort claim within two years of its accrual and presented that case to the appropriate federal agency within 60 days of the civil suit’s dismissal.

The court of appeals assessed the timeliness of the 2015 action here by first identifying when the claim accrued because the limitations period begins to run at that time. In U.S. v. Kubrick, 444 U.S. 111, 118 (1979), the Supreme Court held that a cause of action for purposes of the limitations period accrues when the claimant knows, or would reasonably be expected to know, of the existence of her injury and who caused it, whether or not the claimant is aware that there was negligence or a wrongful act involved. 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.” Barnhart v. U.S., 884 F.2d 298, 299 (7th Cir. 1989).

In determining that the claim here accrued as of August 2010, the district court took judicial notice of a state court medical malpractice claim filed in August 2010 by Ford against Ingalls Memorial Hospital, Dr. Parks-Ballard and the Family Christian Health Center. The district court noted that the August 2010 complaint contained virtually the same allegations as those in this case regarding the failure to timely diagnose and treat Johnnice’s encephalopathy. Ford voluntarily dismissed that lawsuit within a month after its filing, but its relevance is in its reflection of Ford’s awareness that those defendants caused her injuries.

Because the state-filed complaint reflects an awareness that her injuries were caused by the defendant (through its agents), at a minimum, the claim accrued as of August 2010. Pursuant to limitations provisions applicable to FTCA claims, Ford could proceed with her claim against the U.S. only if she (1) presented her claim to the appropriate agency within two years of the date of the claim’s accrual; or (2) filed a civil suit within two years from that date of accrual and presented that case to the appropriate federal agency within 60 days of the civil suit’s dismissal. Because a claim was not presented to the administrative agency until January 19, 2015, which was approximately 4 ½ years after the date of the claim accrued, the plaintiff failed to satisfy either of those two alternative avenues. Nor was the claim presented to the appropriate agency within 60 days from the dismissal of the civil suit that was filed within two years from the date of accrual. No claim was submitted by the agency within 60 days of the dismissal of the August 2010 action, and no other civil suit was filed within two years of the claim’s accrual, which was August 2010 at the latest. On that basis, the district court granted the defendant’s motion to dismiss the complaint.

In affirming the district court’s dismissal of the lawsuit because of the passing of the statute of limitations, the appeals panel took judicial notice of the state court complaint that was filed by Ford’s counsel in August 2010, which contained the same essential allegations as the present suit. The court of appeals was unwilling to speculate as to whether the alleged mental disability of the plaintiff impacted her ability to recognize the cause of her injuries because the 2010 lawsuit established that she was actually aware of the cause of her injuries. In fact, she filed the August 2010 complaint as the plaintiff without mentioning the legally appointed guardianship. There was no guardianship established until Watkins was named her guardian on Jan. 14, 2015.

Because the cause of action accrued at least as of that date, the complaint in this case was not filed within the limitations period. As the court of appeals upheld the dismissal on that ground, the statute of limitations having run, there was no need to consider another alternative argument made by the U.S. that dismissal would also be proper under the Illinois statute of repose. Accordingly, the decision of the district court was affirmed.

Johnnie Watkins, as Guardian of the Estate of Johnnice Ford v. United States of America, No. 16-2109, U.S. Court of Appeals for the 7th Circuit (April 27, 2017).

Kreisman Law Offices has been handling medical malpractice lawsuits, medical negligence cases based on misdiagnosis of disease or illness, hospital negligence and nursing home negligence cases for individuals, families and loved ones who have been injured, harmed or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding communities, including Evergreen Park, Norridge, Northbrook, North Riverside, Orland Hills, Hoffman Estates, Hazel Crest, Berwyn, Bedford Park, Chicago Heights, Crete, Steger, East Hazel Crest, Flossmoor, Park Forest, Forest Park, Forest View, Glenview, Westchester, South Chicago Heights, Chicago (Washington Heights, Riverdale, Pullman, Lake Calumet, Chatham, Grand Crossing, Woodlawn, South Chicago, East Side, Avalon Park, Pill Hill) and Calumet Park, Ill.