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Miller v. Philadelphia Geriatric Center

September 12, 2006


On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 02-cv-01307) District Judge: The Honorable William H. Yohn, Jr.

The opinion of the court was delivered by: Nygaard, Circuit Judge


Argued June 29, 2005

Before: NYGAARD, SMITH, and FISHER, Circuit Judges.*fn1


This appeal raises issues of some complexity concerning the timeliness of an action brought under the Federal Tort Claims Act and various other state statutes. Vicki Miller, the sister of a mentally retarded man and administratrix of his estate, filed a lawsuit sounding in tort against her brother's physicians and the medical/geriatric facility that provided her brother's care. Specifically, she filed both a survival claim of negligence and a wrongful death claim under the Federal Tort Claims Act arguing that her brother died because his doctors administered a combination of psychiatric drugs to the point of toxicity, and then failed to diagnose the extent of the toxicity before it became irreversible and terminal. The District Court granted summary judgment, dismissing the claims as untimely. Miller filed a timely appeal and has assigned numerous errors. We will reverse.


The facts surrounding this appeal require a rather detailed recitation. Decedent Henry Miller was born severely retarded. Although he reached a chronological age of sixty-four, his mental age remained that of a four year old child. Despite this severe impairment, no one was ever appointed his legal guardian. See District Ct. Op., at 9. In 1988, he was placed in a Community Living Arrangement through Jewish Educational and Vocational Services. While at JEVS, Dr. Philip Markowitz provided the decedent with psychiatric treatment, including the prescription of psychiatric medications, primarily a combination of Lithium and Haldol. From June 16, 1994 though September 22, 1995, Dr. Carlos Moreno was the decedent's primary physician. During this period Moreno monitored the decedent's blood levels and reported abnormal Lithium levels to the medical coordinator at the JEVS home. Moreno did not prescribe any medication for the decedent.

In October 1995, the decedent was admitted to Frankford Hospital. While hospitalized, the attending physician repeatedly advised Miller that her brother's condition was caused by an adverse reaction to the combination of medication that had been prescribed at the JEVS home by Markowitz. On November 27, 1995, the decedent was transferred to the Philadelphia Geriatric Center, where Dr. Charles Bongiorno was his attending physician. While at PGC, the decedent's condition deteriorated rapidly. He developed a continuous fever, the cause of which was never diagnosed. On September 9, 1997, after his condition became unstable, the decedent was transferred from PGC to Temple University Hospital. He died on September 24, 1997. The cause of death was listed as sepsis.

On September 21, 1999, Miller commenced legal action against the Philadelphia Geriatric Center, Bongiorno, Markowitz and Moreno by filing a praecipe for a writ of summons in the Court of Common of Philadelphia County. Her complaint was filed on March 1, 2000. Moreno was an employee of Greater Philadelphia Health Action Inc., a federally funded health center. Because the GPHA is a grantee of the federal Department of Health and Human Services, its employees are considered employees of the Public Health Service, a federal agency. Federal jurisdiction existed, therefore, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. The matter was removed to the United States District Court for the Eastern District of Pennsylvania. The United States was subsequently properly substituted for Moreno as a party to this litigation. On October 20, 2000 the District Court dismissed Miller's claims against the United States without prejudice because she failed to exhaust the available administrative remedies. The remaining claims were later remanded to state court.

Miller then filed an administrative claim with the United States Department of Health and Human Service on December 12, 2000. Not having received a decision from the Department after waiting more than six months, Miller filed an action in the District Court on October 24, 2001 in which she named the United States as a defendant pursuant to the FTCA. On February 26, 2002, Markowitz filed an answer and cross-claim against Moreno in the remanded state court action, and the state court claims were removed to the District Court and consolidated with her newly filed federal court action.*fn2

The Government moved for summary judgment, arguing that Miller's claims were barred by the FTCA's two-year statute of limitations. The Government alleged that the decedent became aware of his injury and its probable cause on October 31, 1995. This date reflects a period in which the decedent was admitted to Frankford Hospital with possible acute rhabdomyolyosis, a serious disease characterized by muscle breakdown. Miller argues that the date from which the statute of limitations should be calculated is September 24, 1997 - the date of decedent's death. Miller appeals from two orders of the District Court which disposed of her claims against Appellees Markowitz and the United States. The first order granted summary judgment in favor of Appellee the United States, holding that Miller failed to present her claims against the United States to the Department of Health and Human Services within the two year statute of limitations period outlined in the FTCA. See 28 U.S.C. § 2401(b). In the second order, the District Court entered judgment in favor of Appellee Markowitz based on Pennsylvania's statute of limitations.*fn3


As our late colleague Judge Max Rosenn aptly noted in Hughes v. United States, 263 F.3d 272, 273 (3d Cir. 2001), "determining when the statute of limitations begins to run in a case is sometimes difficult, especially in cases claiming medical malpractice." This is particularly so where, as here, Miller brings both survival and wrongful death claims under the FTCA as well as survival and wrongful death claims pursuant to Pennsylvania law all based on the alleged medical malpractice of the appellees. We turn first to the FTCA claims.

A. The Federal Tort Claims Act

Under the FTCA, a claim against the United States is barred unless it is presented to the appropriate federal agency "within two years after such claim accrues." 28 U.S.C. § 2401(b). The determination of when a claim accrues for the purposes of the FTCA is a question of federal law. Tyminski v. United States, 481 F.2d 257, 262-63 (3d Cir. 1973). The District Court's factual findings regarding the date on which Miller's claims accrued will remain undisturbed unless its findings are clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511; 84 L.Ed.2d 518, 528 (1985). Our review is plenary, however, where the District Court's determinations involve the application and interpretation of legal precepts. D&G Equip. Co. v. First Nat'l Bank, 764 F.2d 950, 954 (3d Cir. 1985).

The FTCA is a limited waiver of the sovereign immunity of the United States. The Supreme Court has admonished that the courts should carefully construe the time limitations of the FTCA so as not to extend that limited waiver beyond that which Congress intended. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979). Normally, a tort claim accrues at the time of injury. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002). However, in Kubrick, the Supreme Court carved out a "discovery rule" exception for FTCA claims involving medical malpractice. Kubrick, 444 U.S. at 111. Such claims, therefore, accrue not at the time of injury, but rather when a plaintiff knows of both the existence and the cause of his injury. 119-122. Importantly, however, accrual does not await the point at which a plaintiff also knows that the acts inflicting the injury may constitute medical malpractice. Id. at 122.

B. FTCA Wrongful Death Claims

Before calculating the time limitations for Miller's federal claims, we must first address an issue she has raised concerning the actual characterization of her claims. In her brief, she argues that the District Court failed to recognize that she was bringing both survival and wrongful death claims, presumably in her capacity as the administratrix of her brother's estate. She argues that the majority of the District Court's discussion of the FTCA claims focused on negligence. See e.g., District Ct. Op. at 8 ("Therefore, the cause of action against the United States alleging the negligence of Moreno, accrued at the latest by December 1995 . . .").

In determining whether a wrongful death claim is distinct from a survival claim, we look to state law. Miller v. United States, 932 F.3d 301, 303 (4th Cir. 1991) ("[S]tate law determines whether there is an underlying cause of action; but federal law defines the limitations period and determines when that cause of action accrued."); see also Chomic v. United States, 377 F.3d 607, 611 (6th Cir. 2004). The wrongful death action is distinct from a survival action under Pennsylvania law.

42 PA. CONS. STAT. Section 8302.*fn4 Pennsylvania law creates an "independent" cause of action for wrongful death. 42 PA. CONS. STAT. Section 8301. An "independent" wrongful death action is one which is created for the benefit of and is held by statutorily specified survivors and is intended to compensate them for the pecuniary loss suffered because of the decedent's death. Put another way, the action remedies the loss sustained by the survivors who are deprived of the decedent's earnings, companionship, etc.*fn5 We agree that the District Court's opinion does appear to conflate Miller's claims. Miller pleaded "negligence" - nothing more specific than that. However, while she has not clearly delineated her claims, she is correct in pointing out that the federal rules of pleading require only that a plaintiff set forth a "short and plain statement" of his claim for relief. Fed.R.Civ.P. 8(a)(2). Moreover, under the rules, "(a)ll pleadings ... (are to) be so construed as to do substantial justice." Fed.R.Civ.P. 8(f). Pleadings need not be construed most strongly against the pleader, rather we should make a determined effort to understand what she is attempting to set forth.

The complaints filed in this matter demonstrate that Miller was indeed alleging a wrongful death claim in addition to her survival action. For example, her complaint naming the United States as a defendant alleges that the defendant's actions "caused the decedent to endure pain and suffering and contributed to the cause of his untimely death." Plaintiff's complaint at 4, ¶ 20. Further, her "Claim for Damage, Injury, or Death" filed with the United States Department of Health and Human Services indicates that she "seeks compensation and damages related to the death of Henry Miller." App. at 69a. The letter from counsel accompanying the filing of this form additionally makes it clear that Miller was making a wrongful death claim ("we are submitting this wrongful death claim . . ."). App. at 71a. Having determined that Miller has pleaded a separate wrongful death action under the FTCA, we now must determine if that claim is timely.

As noted earlier, the accrual date for wrongful death claims brought under the FTCA is determined under federal law. See e.g. Miller, 932 F.3d at 303; Chomic, 377 F.3d at 611. Where a state statute creates such an independent cause of action, it cannot accrue for FTCA purposes until the date of death, which gives rise to the underlying action. Fisk v. United States, 657 F.2d 167, 171 (7th Cir. 1981) (holding that while state law created the wrongful death cause of action, the accrual question was one of federal law); see also Warrum v. United States, 427 F.3d 1048, 1052 (2005) (re-affirming that for purposes of the FTCA, because Indiana law creates a wrongful death claim substantively independent of the personal injury claim possessed by the decedent before death, the wrongful death claim cannot accrue until the date of the decedent's death)).

We now join those circuits that have concluded, albeit under a wide variety of factual scenarios, that wrongful death claims, for FTCA purposes, cannot accrue prior to death. See e.g., Warrum, 427 F.3d at 1051; Johnston v. United States, 85 F.3d 217 (5th Cir. 1996); Washington v. United States, 769 F.2d 1436 (9th Cir., 1985); Fisk,657 F.3d at 167. Here, Henry Miller died on September 24, 1997, and his sister filed her wrongful death action against the United States on September 21, 1999. Because Miller brought her wrongful death action within two years of the decedent's death, her claims are timely.

C. FTCA Survivor Claims

Miller further claims that the District Court erred by holding her survival claims against the United States and Markowitz to be time barred. These claims were also brought under the ...

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